Full text of "The Leo Frank Case by Leonard Dinnerstein"

The Leo Frank Case 



REVISED EDITION 



Leonard Dinnerstein 



The University of Georgia Press 
Athens and London 



To Myra 



Contents 



PREFACE TO REVISED EDITION IX 

PREFACE TO FIRST EDITION XV 
ACKNOWLEDGMENTS xix 

i. The Murder of Mary Phagan / 

ii. Prejudice and Perjury 36 

in. An American Dreyfus 62 

iv. The First Appeal j/ 

v. Tom Watson and William J. Burns 84 

vi. Wisdom without Justice 107 

vii. Commutation //^ 

viii. Vigilante Justice 136 

ix. Aftermath 148 

appendix a. Excerpt from the Appeal of Frank's Lawyers 
for a New Trial 163 

appendix b. The Ballad of Mary Phagan 166 

appendix c. Freeman's Tale 169 

appendix d. A Georgian's View 1/2 

notes iyp 

SELECTED BIBLIOGRAPHY 221 

INDEX 24J 



Preface to Revised Edition 



The Leo Frank Case covered the last two tragic years of a young 
man's life. The book launched my professional academic career in 
1968. It is still read today. I am gratified by its reception and staying 
power. However, as a graduate student I had no intention of writing 
what is now called "social history." I thought of myself as a "po- 
litical" historian. But after I passed my doctoral oral examinations 
at Columbia University in 1963, my wife suggested that I consider 
choosing and researching a more contemporary topic: civil rights. 
Professor William E. Leuchtenburg approved the idea. Upon leav- 
ing Dr. Leuchtenburg's office, I mentioned to a woman in the eleva- 
tor, whom I had never seen before or since, that I was going to write 
on the civil rights movement. She replied, "Remember, the Jews 
were involved in civil rights before it became a Negro issue." 

I took her remark to heart, went home, called a friend who had 
just finished a dissertation on the history of the American Jewish 
Committee, and asked him if he had any suggestions for me. He 
said that I should write about Leo Frank because there were many 
boxes of unused manuscript material about him at the American 
Jewish Archives in Cincinnati. My response was: "Who's Leo Frank?" 
Nonetheless, I pursued his recommendation, found out that no one 
else was working on the topic (or so I was led to believe), and em- 
barked upon my project. After I had completed seven chapters of 
the dissertation, Harry Golden's A Little Girl Is Dead, another work 



x Preface to Revised Edition 

exclusively on the Frank case, appeared. I was extremely upset be- 
cause in 1963 Harry Golden, a popular American Jewish writer and 
publisher of the Carolina Israelite, had written to me that he had 
"a vast material on the Frank case and your proposed dissertation 
will not really go over the same materials. My Frank book uses the 
case only incidentally for the story of Populism, the growing pains 
of the South, and of the Jews, the Bible Belt, etc." However, when 
Golden's A Little Girl Is Disappeared in 1965*, I thought that I would 
have difficulty getting my manuscript published. My apprehensions 
proved to be unfounded. 

While writing my doctoral dissertation on the subject, in the 
mid-1960s, I had no idea that it would evolve into a work that people 
would still read forty years later. In fact, it never occurred to me 
that I was writing something especially significant; at the time I 
thought that I was exposing an injustice that occurred in the United 
States during the Progressive era. It was a monograph that I simply 
hoped would be published; I had no way of knowing the impact 
that it would have on scores of students and general readers as well 
as the contribution it would provide to the development of a more 
professional analysis of the American, and especially the Southern, 
Jewish past. 

In 1966 I heard about a competition cosponsored by the Jewish 
Publications Society and Columbia University Press to publish a 
new work in Jewish History. I submitted my manuscript but it came 
in second. A member of the selection committee later recalled why 
the committee had spurned it. "After all," he said, "it was only a 
doctoral dissertation." Nonetheless, Columbia University Press 
published the manuscript. 

Upon the book's publication in 1968, the Library of Congress 
Dewey Decimal System (used to classify books prior to the cur- 
rent Library of Congress system) assigned it a call number indi- 
cating that the contents constituted a "true crime" rather than a 
study of a major injustice in American history committed during 
the Progressive era. The following year, Saturday Review chose The 
Leo Frank Case as one of the four cowinners of the annual Anisfield- 



Preface to Revised Edition xi 

Wolf Awards given to books that "have made a significant contribu- 
tion ... to intergroup understanding." 

While doing my research for the Leo Frank project, I became 
aware of how little had been written aboutjews in the South. Most 
of the extant books on American Jewish history focused on how 
well Jews had adapted to, and absorbed, the culture of the domi- 
nant group and how much Jews had contributed to the development 
of the United States. I do not think that I found a single general 
work on American Jewish history that did not discuss how many 
Jews had fought and died during various wars in which the United 
States had participated. It was almost impossible to find any works 
in American Jewish history, especially Southern Jewish history, that 
questioned or criticized aspects of accepted American culture or 
the nature of American justice. The Leo Frank Case was probably the 
first scholarly effort focusing on the treatment of Jews in the South. 
It explained the ambivalence that Southerners felt toward Jews. In 
addition, it showed the poor judgments that some Jews made when 
trying to defend Frank and obtain a new trial for him. 

To be sure, there were many contemporary periodical articles on 
Leo Frank. From 1913 to 1915, several attorneys, inquisitive journal- 
ists, and wealthy American Jews, especially in the North, sought to 
have Frank retried after he had been convicted of murder. Once 
the lynching occurred, in August 1915, and the discussions of it af- 
terward died down, the name and experiences of Leo Frank prac- 
tically disappeared from books and articles about American Jewry. 
Occasionally there would be a work that mentioned Frank, espe- 
cially in 1954, tne three hundredth anniversary of Jewish settle- 
ment on the continent, but no serious analysis of how the Frank 
case developed had appeared. (In 1939 historian C. Vann Woodward 
included a chapter on Frank in a biography of the Georgia Populist 
Tom Watson, but the Frank affair was examined in the context of 
Watson's political career during the Populist and Progressive eras.) 
Jewish publications either avoided,the subject or merely mentioned 
that Frank had been a victim of 'an anti-Semitic public. 

By the 1960s, a decade in which critics reexamined injustices 



xii Preface to Revised Edition 

in many areas of American life, the Frank case was not the only 
"crime" that attracted the attention of scholars. Ethnic experiences 
during and after the civil rights era of the 1950s and 1960s became 
a subject of intense societal concern and historical analysis, and 
the backgrounds of many groups of Americans were examined. 
This originally started in the 1950s with the reexamination of the 
African American past, but the pace accelerated in the 1960s and 
thereafter. 

Few critical analyses of Jews in the United States had appeared 
before those years. Afterward Jews were among the American eth- 
nics who received the most extensive attention from professional 
historians. Since the 1970s, several additional accounts of Leo 
Frank's experiences have been published and there has even been 
a Broadway musical (Parade, 1998) on the subject. The best of the 
books, Steve Oney's seven hundred-page work And the Dead Shall 
Rise, won the National Jewish Book Award for history in 2004. 

Why the Leo Frank case has captured the imagination of so 
many must be explained. The murder of a thirteen-year-old girl 
was a sensational story. Aside from the shock of the event and the 
brutality of the murderer, the public response to the incident re- 
vealed many of the existing concerns of poor white Southerners. 
Late-nineteenth- and early-twentieth-century industrialization 
in the South lured rural Southerners into the cities. In the newly 
established factories, employees adjusted to the difficulties expe- 
rienced in controlled and demanding environments. Moreover, 
parents in the South feared the consequences for their children 
working under the supervision of perhaps lascivious employers. 
For these people the murder highlighted the costs of industrializa- 
tion and brought forth public discussion of a variety of societal 
concerns, including the lawlessness of a growing urban metropolis 
and the vulnerability of children who slaved ten or more hours a 
day in industrial sweatshops. The murder also served as a lightning 
rod for the expressions of resentment of labor for management, 
and of the South for the North, which had begun to impose its own 
culture on the Southern way of life. These combined reasons suf- 



Preface to Revised Edition xiii 

ficed to arouse suspicions about Frank and to allow Southerners to 
quickly accept the testimony of the prosecution's witnesses and the 
verdict of the jurors. 

In 1982, when eighty-two-year-old Alonzo Mann, former office 
boy in the firm that Frank managed, came forth with an affidavit 
stating that he had additional evidence that tended to exonerate 
Frank of the murder, there was renewed national interest. The 
Nashville Tennessean published a special Sunday supplement on 
Leo Frank on March 7, 1982, reviewing the history of the Frank 
case and evidence presented. Newspapers all over the country ex- 
cerpted that article for their own use. Mann, at that time, claimed to 
have seen Jim Conley, the state's main witness against Frank at the 
trial, carrying a girl's body at about the time Mary Phagan had been 
murdered. Mann claims that Conley saw him and warned, "If you 
ever mention this, I'll kill you." Only thirteen years old at the time, 
Alonzo stated that he had returned home, told his mother what 
had happened, and was advised by her to keep this information to 
himself. He therefore did not tell anyone what he had seen, or what 
Conley had said, for the next sixty-nine years. 

Mann's statement failed to convince those who believed in 
Frank's guilt. By itself, Mann's assertion that he witnessed Conley 
carrying the body added only another detail to corroborate Frank's 
claim of innocence. Nevertheless, in the 1980s, an era more sen- 
sitive to the nuances of civil liberties, Mann's tale spurred some 
groups that believed in Frank's innocence to take action. Jewish or- 
ganizations in Atlanta, led by the Anti-Defamation League of B'nai 
B'rith, thought that the new information sufficed for the Georgia 
Board of Pardons to grant a posthumous pardon. The Board of 
Pardons, however, believed that without the records of the trial 
(no transcript of questions and answers ever existed), and without 
living witnesses, it had no basis for action. In 1985, however, appel- 
lants reapplied to the Georgia Board of Pardons and a posthumous 
pardon was granted on the grounds that the state had failed to safe- 
guard Frank while in prison and therefore had allowed abductors to 
steal him away. 



xiv Preface to Revised Edition 

The story that follows is not a pretty one. As we continue to learn 
more about the murder of Mary Phagan, there are still people who 
sincerely believe that Frank was guilty of the crime for which he 
was convicted. Some are still in doubt. I have no doubts: Frank was 
innocent. 

Leonard Dinnerstein 
February 23, 2008 
Tucson, Arizona 



I would like to thank my good friends Fred Israel and Fred Jaher for their 
helpful critiques of this new preface. 



Preface to First Edition 



one of the most infamous outbursts of anti-Semitic feeling 
in the United States occurred in Georgia in the years 191 3, 
1 9 14, and 19 1 5. Leo Frank, a Northern Jewish industrialist, 
was convicted of murdering a thirteen-year-old working girl. 
The crime channeled the fears and frustrations of the peo- 
ple in Atlanta, themselves the victims of the Southern in- 
dustrial transformation, and Frank emerged as the focal point 
for the resentments engendered by a fledgling industrial so- 
ciety. The Frank case, which eventually developed into one 
of the most talked-about injustices of the Progressive Era, 
served also to highlight the dilemmas and difficulties facing 
the American South during that period. 

Although the United States, by the beginning of the 
twentieth century, was changing from an agrarian to an in- 
dustrial society, the pace and effects of this transformation 
varied from region to region. The South, distinctive in its 
attachment to tradition, its relative isolation from the stream 
of late nineteenth-century immigration, and its esteem for 
rural values, proved more resistant to industrialism than did 
other sections of the country. But the old Whigs and their 
descendants — the Bourbons of the New South — desired to 
make the South industrially potent. They encouraged North- 
ern industrialists to invest in the region and promised them 
an abundance of cheap and willing labor. 

The introduction of the factory below the Mason-Dixon 



xvi Preface to First Edition 

line marked the intrusion of an alien culture which threat- 
ened cherished traditions. Many Southerners responded to the 
threat by clinging all the more tightly to their agrarian past. 
Always proud of their Anglo-Saxon blood, they became 
toward the end of the nineteenth century violently xenopho- 
bic. Long critical of urban ways, they now saw the city as 
the embodiment of every evil in society. Always fervent in 
their religious faith, they clung to the Bible as the revealed 
word of God, to be ignored at one's peril. 

Traditionalists tried hard to preserve their old ways, but 
they failed to stem the tide of change. In the 1880s and 1890s 
poverty forced many Southern farmers from their rural moor- 
ings and into the cities where work might be found. The 
factory ultimately promised to alleviate poverty, but its im- 
mediate effects — slums and sweatshops — brought suffering 
and frustration. Bewildered Southerners, unable to under- 
stand or to control the new forces dominating their lives, 
attempted unsuccessfully to find security in dreams of a 
golden past. These people yearned for a bulwark against an 
incomprehensible new world. In the cities an alien culture 
threatened to overwhelm rural morality and Protestant funda- 
mentalism. Although the foreign born constituted less than 
1 per cent of the total Southern population in 1900, the few 
immigrants who chose to live in the region seemed a much 
greater threat than their numbers might indicate. 

The "invasion" of strangers, with their peculiar customs, 
eventually stimulated organized opposition to all non-Protes- 
tant, non-Southern, non-American ways and people. But be- 
fore the banding together of the Fundamentalists and the 
Ku Klux Klan in the 1920s, antagonisms exploded in isolated 
incidents. From the Populist Era until the beginning of the 
first World War increased numbers of Negro lynchings, race 
riots, and assaults upon foreigners publicized Southern frus- 
trations. None of these outbursts, however, provided more 
than temporary relief from the perplexities of urban living. 
In 191 3 the people of Atlanta, many of whom had been 



Preface to First Edition xvii 

coaxed from the countryside with the promise of a better 
life, rose up and attacked a symbol of the new industrial cul- 
ture which had reneged on its promise. Leo Frank was chosen 
to stand trial for the tribulations of a changing society. 

LEONARD DINNERSTEIN 

Fairleigh Dickinson University 
Teaneck y New Jersey 
December, 1967 



Acknowledgments 



during the course of my research I have benefited from 
the advice and counsel of a great number of people. It is a 
pleasure to acknowledge their contributions. 

Professor William E. Leuchtenburg of Columbia Uni- 
versity directed this book as a dissertation. I am indebted to 
him for his insightful commentary as welt as for his warm 
support, guidance, and concern during the years that I have 
known him. Professor Walter Metzger read the manuscript 
with care and improved the essay immeasurably. Professor 
Richard Hofstadter made some crucial suggestions. 

Yonathan Shapiro suggested the topic and encouraged me 
in the earliest stages. Fred Israel read several drafts and 
indicated many areas which needed improvement. Michael 
Weinberg made astute comments on all the chapters. Murray 
and Debby Friedman gave the entire manuscript a careful 
reading and suggested necessary alterations. Philip Hollman 
provided valuable assistance in the treatment of legal ma- 
terial. 

Dr. Stanley Chyet of the American Jewish Archives was 
extremely generous with his time and counsel. He and his 
staff have been consistently helpful. The late Mrs. Mary 
Givens Bryan of the Georgia State Archives was gracious 
and helpful. Harry J. Alderman of the American Jewish Com- 
mittee and the late Louis Schreiber of Brandeis University 
also extended many courtesies. 



xx Acknowledgments 

Personal interviews were granted by Alexander Brin, 
Harold Davis, and McLellan Smith. Telephone interviews 
were given by Mrs. Charles Samuels, Mrs. Oscar Cohen, 
Franklin Garrett, and Wilbur Kurtz. 

Access to the Julius Rosenwald papers was granted by the 
University of Chicago; to the Baltimore Sun Library by 
Clement G. Vitek; to the Anti-Defamation League files in 
New York City by Nathan Belth; to the newspaper morgue 
of the Boston Herald-Traveler by John J. McMahon; to the 
Leo Frank papers in the law offices of Nuter, McClennon & 
Fish in Boston by Benjamin A. Trustman and in Brandeis 
University by Mr. and Mrs. Harold Marcus. James Marshall 
and the Marshall family permitted me to quote from the 
Louis Marshall papers located at the American Jewish Ar- 
chives in Cincinnati. Kenneth S. Goldstein of the American 
Folklore Society approved the inclusion of "The Ballad of 
Mary Phagan" in the appendix. Permission to use pictures was 
granted by Dr. Chyet and William I. Ray of Atlanta. 

The staff at the Information Desk in Butler Library, Colum- 
bia University, was always very helpful. My father, Abraham 
Dinnerstein, translated the section on Leo Frank for me from 
Abraham Cahan's autobiography, Blatter Von Mein Leben. 
Mrs. Shirley Lerman and Mrs. Sarah Hope, two women with 
a keen understanding of a historian's needs, typed the manu- 
script skillfully. Mrs. Gladys T. Hartman, of the CCNY 
History Department, did supplementary typing and also pro- 
vided cheerful and efficient secretarial assistance. Edith Cohen 
helped proofread the galleys. The National Foundation for 
Jewish Culture provided some financial aid in gathering 
materials. 

Others who have made positive contributions via conversa- 
tions, correspondence, criticism, clerical assistance, or research 
include Rose Dinnerstein, Harry Golden, Nancy Hollander, 
the late Mark de Wolfe Howe, Alton DuMar Jones, Pearl 
Kluger, Charlotte LaRue, DeWitt H. Roberts, Paul Rosen- 
blum, Alden Todd, and Sydney S. Weinberg. 



Acknowledgments xxi 

Finally, I would like to give my special thanks for the in- 
finite patience and judicious counseling of two other people. 
Fred Jaher read the manuscript more frequently than any 
other person; his sustained interest and detailed criticism went 
far beyond the dictates of friendship. My wife, Myra, edited 
several versions of each chapter. Her assistance has been in- 
valuable. 

I am responsible for all errors of fact and judgment which 
remain. 

L.D. 



The Leo Frank Case 



CHAPTER I 



The Murder of Mary Phagan 



THEMURDERofa thirteen-year-old girl in Atlanta, Georgia, 
on Confederate Memorial Day, 191 3, served as a catalyst for 
one of the most lurid displays of intolerance in the Progressive 
Era. The girl's disfigured body had been found in a condition 
which provided grist for the sensation-seeking press of the city. 
The newspapers then exploited the crime for commercial pur- 
poses, thereby rousing a taut and horrified populace. When the 
police apprehended, as one of the prime suspects, the superin- 
tendent and part-owner of the factory where the girl had been 
employed and her body had been discovered, the authorities 
could barely contain community hysteria. Resentment toward 
the new industrial society had already become intense in At- 
lanta, and the arrest of the industrialist provided a focus for the 
people's rage. Because the superintendent was Jewish, his 
arraignment complicated the emotional reaction and even- 
tually led to one of the causes celebres of the century. 



Newt Lee, the nightwatchman of the National Pencil Fac- 
tory, found the body at about 3 a.m., on Sunday, April 27, 
191 3. He had gone down to use the Negro toilet in the factory 
basement. As he started up again a ray of light from his lantern 
fell upon something that looked like a human form. At first he 
thought someone must be playing a joke on him, but when he 



2 The Murder of Mary Phagan 

approached the prostrate figure he saw that it was no ruse. He 
then hastened up the ladder and telephoned the police, who 
arrived within ten minutes. 

The condition of the corpse made the men shudder. Sawdust 
and shavings covered the girl's body and dry blood caked her 
skull. Both eyes were bruised and her cheeks had been slashed. 
A strip of her underdrawers, as well as a piece of jute rope, 
encircled her neck. (An autopsy would later reveal that the 
girl had been choked and that her head had been dented with 
a blunt instrument.) A closer look revealed fingers out of joint 
and torn clothing. So covered was the corpse with grime that 
the men had to look beneath her stocking to see that she was 
white. The girl's purse had disappeared, and there were no 
means of identification. 1 A sister-in-law of one of the police- 
men worked in the pencil factory, and she was summoned to 
identify the dead girl. "Oh my God!" the woman exclaimed, 
"that's Mary Phagan." 2 

When the police questioned Newt Lee, his "wild and ex- 
cited manner" aroused their suspicion. Lee claimed that he 
had arrived for work at 4 p.m., two hours earlier than his 
normal starting time, on Saturday, April 26. Because it was 
Confederate Memorial Day and a holiday for most of the em- 
ployees, Leo Max Frank, the twenty-nine-year-old factory 
superintendent, had asked the night watchman to come in at 4 
p.m. so that he could get away earlier. When Lee arrived, 
however, Frank had not yet completed his own work and 
told the night watchman to go out and return again at his 
usual starting time, 6 p.m. Lee said he had returned at the reg- 
ular time, and had made his usual rounds, but it was not until 

3 a.m., when he went to the basement to use the toilet, that he 
had discovered the body. 3 

Since the murdered girl had been discovered in the factory, 
the pencil plant's superintendent and part owner, Leo Frank, 
was summoned. The superintendent arrived at the factory 
visibly shaken. Two police escorts had called for him at his 
home and had taken him to the morgue before bringing him 



The Murder of Mary Phagan 3 

to the pencil plant. When Frank saw the corpse he recoiled in 
horror. He did not recognize the girl. Afterwards, in the fac- 
tory, after he had been given her name, Frank checked his 
cash book and saw that she had been in his office shortly after 
noon on the previous day to collect her pay. At the time that 
Frank revealed this information, neither he nor the police 
realized that no one would ever testify to having seen Mary 
Phagan alive after she had left Frank's office. 

Between the time that the police arrived on the scene, and 
the appearance of superintendent Frank four hours later, a 
search had been made for clues. On the basement floor, near 
the corpse, lay two notes, scrawled on some scraps of yel- 
lowed paper. They read: 

Mam that negro hire down here did this i went to make water 
and he push me down that hole a long tall negro black that hoo 
it wase long sleam tall negro i wright while play with me 

he said he wood love me land down play like the night witch did 
it but that long tall black negro did buy his slef. 4 

Eventually these scrawled and yellowed papers, commonly 
referred to later on as the murder notes, would become the 
center of a seething controversy. But at first the policeman 
considered them unimportant and discarded them. 5 

The police then discovered a path through the sawdust be- 
tween a ladder which connected the basement with the first 
floor to a spot where the body lay. It appeared that the girl 
had been dragged along this way. At the bottom of the ele- 
vator shaft observers saw a girl's hat and parasol, a ball of 
twine, and "something that looked like a person's stool." As 
soon as the elevator (which had been on the second floor of 
the building and had remained there until Frank arrived and 
began using it) was lowered to the basement, it crushed 
everything in the pit of the shaft. The mashing of the human 
excrement resulted in the spread of a foul odor. 6 Unfortu- 
nately no one realized the significance of the excrement. 



4 The Murder of Mary Phagan 

Having concluded their immediate investigation, the au- 
thorities left, taking the night watchman, whom they sus- 
pected of concealing evidence, to the police station for fur- 
ther questioning. All those who remained in the building (and 
by that time Frank had summoned some of his subordinates) 
appeared extremely uneasy. Policemen on the scene would 
testify at the trial, however, that to them Frank seemed the 
most ruffled. 7 

To protect the pencil plant's interests, superintendent 
Frank engaged the Pinkerton Detective Agency to make an 
independent investigation. The next day the Pinkerton's, to- 
gether with the police, combed the factory. Frank, however, 
was not satisfied with the investigation. He complained to a 
reporter that he deeply regretted "the carelessness shown by 
the police department in not making a complete investigation 
as to finger prints and other evidence before a great throng of 
people were allowed to enter the place." 8 

Indeed, there was some reason to complain of the police- 
men's lack of skill. They sawed off the boards of the back 
door in the basement which were covered with bloody finger- 
prints, and then lost them before an examination could be 
made. A reporter found bloody fingerprints on the corpse's 
jacket and brought it to the attention of the authorities. It was 
"stated that these prints are clearly outlined and may prove of 
importance in establishing the identity of the murderer." 9 
Yet no report was ever issued as to whose fingerprints were 
found, if, indeed, any examination was made at all. 

After two days of evaluating the available evidence, the 
police arrested Leo Frank on Tuesday, April 29. Frank had 
been the last person to see Mary Phagan alive. Whenever the 
police saw him afterwards he appeared extremely nervous. He 
had also asked Newt Lee, the night watchman, to report early 
on the day of the murder and then sent him away again, to 
return at his normal hour. When Lee came back at 6 p.m., 
Frank left the building. He telephoned an hour later to see if 
everything was all right at the factory. The superintendent 



The Murder of Mary Phagan 5 

had never done this before but explained afterwards to the 
police that, as he left the factory, a former bookkeeper had 
approached the building and wanted to pick up some old 
shoes that he had left when he was discharged two weeks 
earlier. Frank had hesitated at first, then permitted him to go 
in, but asked Lee to accompany him. Therefore, Frank said, 
he had phoned Lee to make sure that there had been no 
incident with the bookkeeper. 

The day after the discovery of the corpse, blood stains and 
hair "identified positively as the dead girl's" were found in a 
workroom opposite Frank's office. 10 The blood stains al- 
legedly formed a path from a lathe in the metal workroom to 
the elevator. 11 This new information, coupled with the super- 
intendent's suspicious behavior, led to the arrest of Leo Frank. 
Reporters seemed surprised at the turn of events and assumed 
that the police must have more information than they had 
revealed. But when they queried Chief of Detectives New- 
port Lanford about Frank's detention, the Chief refused to 
give out any information and would say only, "The town 
seems to be very much wrought up over the murder and I 
think this is the wisest course to take." 12 



Leo Max Frank was born in Paris, Texas, on April 17, 
1884. His parents, Rudolph and Rae Frank, had moved to 
Brooklyn, New York, a few months after their son's birth. 
Frank had a fairly typical middle-class Jewish upbringing, 
attending the Brooklyn public schools, Pratt Institute, and 
Cornell University, where he received the degree of Mechan- 
ical Engineer in 1906. The B. F. Sturtevant Company, in 
Hyde Park, Massachusetts, a Boston suburb, gave him his 
first job. 

Frank did not remain long in Massachusetts. He moved 
back to Brooklyn and worked there for a short time before 
accepting the invitation of his uncle, Moses Frank, to help es- 



6 The Murder of Mary Phagan 

tablish the National Pencil Factory in Atlanta. The young 
man had a small financial interest in the business. 

In 1 910, Frank married Lucille Selig, daughter of a wealthy 
and established Atlanta family. The newlyweds made their 
home with the bride's parents. In Atlanta, Frank, achieved 
some degree of social prominence within the Jewish commu- 
nity; the local B'nai B'rith elected him its president in 191 2. 
He had never attracted any public attention until April 29, 
191 3, when the police arrested him on suspicion of murder. 13 

At the time of his arrest the Constitution described Frank as 
a "small, wiry man, wearing eyeglasses of high lens power. He 
is nervous and apparently high-strung. He smokes incessantly 
and stuffed a pocket with cigars upon leaving for police 
headquarters. . . . His dress is neat, and he is a fluent talker, 
polite and suave." 14 A business associate later recalled that 
upon first meeting Frank he found him uncongenial. "His was 
the nervous, bilious temperament which at first repels rather 
than attracts." 15 

The news of Frank's arrest stunned those who knew him. 
His wife rushed to the police station but was refused permis- 
sion to see her husband. To a Georgian reporter she sobbed, 
"My husband is absolutely innocent. . . ." 16 Frank's friends 
expressed their indignation over his detention and declared it 
to be impossible for him to have had anything to do with the 
murder. The Augusta Chronicle noted that "the Jewish peo- 
ple are also standing by Frank, having every confidence in his 
innocence and ready to do anything necessary to establish 
that fact." 17 

Frank had engaged counsel to protect the National Pencil 
Factory's interests because the murder had occurred in the 
pencil plant. When the police first brought him to head- 
quarters for questioning on April 28, the day after the 
murder, attorney Herbert Haas, who represented the firm, 
and Luther Rosser, who would become chief defense counsel 
at the trial, joined him there. Although Frank was not for- 
mally arrested until the next day, word spread through 



The Murder of Mary Phagan 7 

Atlanta that he had hired counsel beforehand. This rumor led 
many to conclude that the superintendent had a guilty con- 



The murder of Mary Phagan, as an isolated event, was 
shocking. For Atlanta's working classes, however, the crime 
seemed to climax a series of urban calamities. Most of the 
city's laborers had emigrated from rural Georgia, 1 " where 
they had learned to expect, and in some measure to cope with, 
poverty and suffering. In the city, however, many "found it 
impossible to make a quick and easy adjustment to the system 
of urban values." 20 The reason for this may have been that, 
difficult as rural life was, it provided traditional social guide 
posts. But the city undermined the strong family and com- 
munity ties which had characterized the past. 

Working conditions in Atlanta compared unfavorably with 
those in other parts of the country. Cotton mills, the city's 
leading industry, turned out children "sapped of their life- 
blood . . . starved, stunted and all but demoralized." Despite 
a shortage of workers, factory wages were low and hours 
long. The normal work week lasted sixty-six hours and, 
except for Saturday, the working day generally extended 
from 6 a.m. to 6 p.m., with only a half hour for lunch. In 19 14 
there were children working in Atlanta for as little as 22 
cents a week. According to an official of the National Child 
Labor League, Georgia did not have even the semblance of 
factory inspection, and employers openly violated existing 
laws prohibiting employment of minors under ten. 21 

Living conditions in Atlanta compounded the difficulties of 
its residents and seriously threatened their health. In their 
squalid factory slums, the laborers, mostly white tenant 
farmers who had come to the city in an attempt to improve 
upon their wretched lives on the farm, suffered from hunger 
and destitution. In 1908, fifty thousand persons, or approxi- 



8 The Murder of Mary Phagan 

mately one-third of Atlanta's population, lived without water 
mains or sewers and used well water and surface closets. In 
191 1 more than half of the white school children, and slightly 
under three-quarters of the Negro school children, suffered 
from malnutrition, anemia, enlarged glands, and heart disease. 
The United Textile Workers Union complained in 191 4 that 
far too many Atlanta children fell victim to pellagra — a dis- 
ease without a known cure at that time. The death rate in the 
city was appalling. A United States census report for 1905 
noted that of three hundred and eighty-eight cities in this 
country, only twelve had a higher death rate than Atlanta. 
The requests for welfare, which also reflected the city's 
poverty, increased sharply between 19 10 and 191 3. Atlanta's 
Journal of Labor noted that it had received 2,000 calls for 
help in 19 10, 4,000 in 191 1, 5,000 in 191 2, "and the gloomy 
forecast presents itself that the winter of 191 3- 19 14 will 
establish a new record in this respect." A statement of the At- 
lanta relief warden succinctly summarized the situation: 
"There are too many people on the ragged edge of poverty 
and suffering." 22 

The crime rate in Atlanta highlighted the stresses of the 
new urbanites. In 1906 a demoniac race riot, spurred on by a 
gubernatorial campaign with strong appeals to prejudice and 
the reports of sensational newspapers which exaggerated sto- 
ries of alleged Negro assaults upon white women, attracted 
national attention. 23 A year before, Atlanta had arrested 
more children for disturbing the peace than any other city in 
the country. In 1907 only New York, Chicago, and Balti- 
more, cities with considerably larger populations, exceeded 
Atlanta's figure for child arrests. In 1905 the Atlanta police 
apprehended 17,000 persons out of a total population of 
115,000, and the following year 22,000. These figures more 
than tripled the number in New Orleans, although that city 
had twice Atlanta's population. More than two-thirds of those 
detained were guilty of disorderly conduct and drunkenness. 24 

The city police force proved unable to cope with the new 



The Murder of Mary Phagan 9 

problems thrust upon it. In fact, at times, the policemen went 
to irrational extremes in attempting to cope with certain diffi- 
culties. On one occasion, when Atlanta experienced a labor 
shortage, the police attempted to rectify the condition by 
arresting all able-bodied men found on one of the main streets. 
Employed and unemployed, black and white, were hauled 
into court, fined, and sentenced to the stockade without being 
given a chance to defend themselves. One man so punished 
had been in the city for only three days. Neither relatives nor 
employers were notified of the round-up or the sentencings. 
According to one observer, the policemen also acted with 
brutality. In 1909 they allegedly beat one Negro to death and 
chained a white girl to the wall until she frothed at the mouth. 
In 19 10 a commission investigating prison conditions in the 
city uncovered "stories too horrible to be told in print." 25 

The pathological conditions in the city menaced the home, 
the state, the schools, the churches, and, in the words of a 
contemporary Southern sociologist, the "wholesome indus- 
trial life." 26 The institutions of the city were obviously unfit 
to handle urban problems. Against this background, the 
murder of a young girl in 191 3 triggered a violent reaction of 
mass aggression, hysteria, and prejudice. 



Southern attitudes toward "the sweetest and purest thing 
on earth — a young girl" 27 also conditioned Atlanta's re- 
sponse to the murder. For generations Southerners had feared 
assaults upon women. An attack upon a white woman was 
considered an attack upon the South itself. 28 The Memphis 
Commercial Appeal commented upon the prevailing senti- 
ment editorially: 

Today after centuries of progression, we have reached a plane 
where there are other things dearer than life, and chief among 
these is female virtue. When this is slain . . . with devilish de- 
liberation and cunning . . . the avenger has the right to go forth 



io The Murder of Mary Phagan 

in quest of blood-atonement and if he does not do so he is un- 
worthy of the civilization of the day. 

There is a higher law . . . and that law readeth "Thou shalt 
protect female virtue at all hazards." - 9 

But the idealization of womanhood which was so important 
to the South had undergone some rude shocks under the pres- 
sure of industrialization. The poverty that sent the farmers 
into the towns also pushed their women into the factories. 
Although economic necessity may have forced women into 
industrial occupations, they undertook such employment 
with trepidation. Southerners considered factory work for 
women degrading and contact with male workers corrupt- 
ing. 30 Husbands and fathers hesitantly violated Southern 
traditions by sending their wives and daughters to the fac- 
tory, but they were tormented with guilt. As the owner of a 
cotton textile mill explained: "It was considered belittling — 
oh! very bad! It was considered that for a girl to go into a 
cotton factory was just a step toward the most vulgar things. 
They used to talk about the girls working in mills up-country 
as if they were in places of grossest immorality. It was said to 
be the same as a bawdy house; to let a girl go into a cotton 
factory was to make a prostitute of her." 31 

With the murder of Mary Phagan, a haunting fear was 
realized. The murder of the child symbolized all that was evil 
and most feared about the city. "No girl ever leaves home to 
go to work in a factory," Atlanta's Judge Arthur Powell 
wrote in later years, "but that the parents feel an inward fear 
that one of her bosses will take advantage of his position to 
mistreat her, especially if she repels his advances." 32 Mary 
Phagan's mother sobbed to a reporter, "There are so many 
unscrupulous men in the world. It's so dangerous for young 
girls working out." 33 Atlanta's Journal of Labor expressed 
the working class sentiment: "Mary Phagan is a martyr to the 
greed for gain which has grown up in our complex civiliza- 
tion, and which sees in the girls and children merely a source 
of exploitation in the shape of cheap labor. . . ." 34 



The Murder of Mary Phagan n 

Mary Phagan would have celebrated her fourteenth birth- 
day a few weeks after the murder. A native of Marietta, 
Georgia, she typified the small-town Southerner who left her 
home to seek work in the urban factories. When her widowed 
mother remarried in Atlanta, Mary did not have to remain in 
the factory any longer. She continued at her job only because 
she liked her work. But after her death, Mary became a 
symbol for all the young women who had never been per- 
mitted a choice. 35 

Grieving friends and relatives were heartbroken over the 
slaying. Ten thousand mourners, "the largest crowd that ever 
viewed a body in Atlanta," came to pay their respects. The 
funeral attracted more than one thousand persons. As the 
white coffin "befitting the innocence of the young girl lying 
within it" was brought into the church, the choir sang, 
"Nearer My God to Thee," and Mary's mother fainted. At 
the cemetery in Marietta, Mary's grandfather cried, an aunt 
let out a "piercing scream," and the child's mother collapsed 
again. The presiding minister supplicated, "May God bring 
the man guilty of this terrible crime to justice." 36 



The newspapers of Atlanta exploited the sensational nature 
of Mary Phagan's death and helped to stir up public excite- 
ment about it. In 191 3 the city had three daily papers: The 
Atlanta Constitution, which monopolized the morning field, 
and The Atlanta Journal and The Atlanta Georgian, which 
competed with each other in the afternoon. Of the three, the 
Journal had the largest circulation and was clearly the most 
popular, until 191 2 when William Randolph Hearst pur- 
chased the Georgian? 1 

Hearst, who aimed for newspapers that "made the reader 
recoil in shock," 38 attempted to give Atlantans the show that 
his audiences in San Francisco, New York, and Chicago had 
come to expect. He sent Keats Speed, the editor of his New 



GIRL SLAIN IN STRANGLING MYSTERY X.-'Xti 



« - JS ***** !&*& S|t^| ^ g*ri Mt I.** hBW HMv,a& T rtoMUK* >u ^, |« Ifc. f* 




One of the first published pictures of Mary Phagan. Note the sentence 
in the caption above the picture: "She was seen on the streets at mid- 
night Saturday with a strange man." This was later proved to be 
erroneous. She never left the pencil factory after she had entered it 
shortly after noon on April 26, 191 3. But for a number of days so 
little was known about how she had died that the newspapers resorted 
to printing unsubstantiated statements. 

Courtesy of The Atlanta Georgian^ April 28, 191 3 



The Murder of Mary Phagan 13 

York Journal, to Atlanta to spruce up the new acquisition, 
and soon banner headlines, photographic layouts, advice to 
the lovelorn, comic strips, and syndicated features became 
prominent. Formerly, the last edition of the Georgian had 
gone to press at about 2:30 p.m. Speed added several editions 
so that news of the latest doings, the ball scores, and any sen- 
sational items might reach Atlantans sooner. Editions went 
"onto the street everytime anything happened that would 
justify a headline, and frequently when it wouldn't." 39 The 
populace reacted to the new policy with enthusiasm, and the 
newspaper's circulation began to rise. 40 

With the murder of Mary Phagan, the Georgian developed 
"the greatest news story in the history of the state, if not of 
the South. . . ." 41 Screaming streamers and banner head- 
lines appeared on "extra" after "extra" as the factory girl's 
death received the full Hearst treatment. In only four months, 
from the end of April through August, 17,686 column inches, 
or the equivalent of more than 100 pages the size of The New 
York Times, were devoted to the case. By the end of August 
the Georgian had tripled its normal sales of about 40,000 
papers a day, and it boasted the largest circulation of any 
Southern daily paper through 1913. 42 The Georgian had 
inaugurated its dramatic handling of the case with twenty 
"extras" and five pages of pictures and stories about Mary 
Phagan and her family. 43 The Journal and the Constitution, 
both of whose usual formats featured conservative, one- 
column headlines, were forced to compete with the Hearst 
paper by expanding their coverage of the murder. The more 
space the newspapers devoted to the murder, the larger the 
headlines, and the more vociferous their editorials, the more 
intense was the public reaction. 

The rural Georgians who flocked to Atlanta at the begin- 
ning of the century expected the daily newspaper to provide 
them with the information that they needed to comprehend 
their strange new urban environment. They also wanted 
gossip, entertainment, and drama — items they had customar- 



14 The Murder of Mary Phagan 

ily received from their small-town weeklies. 44 In addition to 
helping the immigrants adjust to their new surroundings, the 
papers also incited popular passions. Characterized by innu- 
endo, misrepresentation, and distortion, 45 the yellow jour- 
nals' account of Mary Phagan's death aroused an anxious city, 
and within a few days, a shocked state. 

The first reports after the murder suggested that Newt 
Lee, the night watchman, might have committed the crime. 
He was arrested the morning that the body was discovered, 
and the police intimated that he knew more than he had yet 
revealed. That afternoon the detectives brought Lee back to 
the factory to help them obtain additional information. A 
large crowd of spectators had already surrounded the build- 
ing. As the people spotted Lee, some of them cried, "He 
ought to be lynched." 46 

It was later proved that Lee's only connection with the 
crime was the discovery of the corpse, but early newspaper 
slanders disregarded known facts. The Journal claimed to 
have "proven conclusively" that Newt Lee "mistreated and 
murdered pretty Mary Phagan" or knew who did. The police 
also suspected Lee, and they allegedly tortured him merci- 
lessly. For three days they kept the night watchman manacled 
to a chair and put him "through a searching, grilling 'third 
degree' that left him weeping and nerveless." No amount of 
questioning, however, could get the Negro to change his con- 
tention that he knew nothing about the murder. Nevertheless, 
the readers of Atlanta's newspapers were told that the police 
believed Lee "has the whole story at his tongue's end and that 
he will eventually clear the mystery." 4T 

After three days of grilling Newt Lee without gaining any 
new information, the police dispatched the Negro to a base- 
ment cell and practically forgot about him. But this lack of 
police interest in him did not prevent the Georgian from 
running a streamer, "LEE'S GUILT PROVED." There 
seems to have been no evidence or information to support this 
last contention other than the remark of Atlanta's chief de- 



The Murder of Mary Phagan 15 

tective, Newport Lanford, that "We Have Evidence in Hand 
Which Will Clear the Mystery in the Next Few Hours 
. . . ." 48 The next day, Atlanta's other dailies condemned the 
Georgian's absurd and inflammatory conclusion. 49 

After four days of newspaper hysteria following the dis- 
covery of the body Atlanta's Mayor urged the police to re- 
frain from releasing so much information about the crime. He 
had received numerous complaints about the sensational news- 
paper extras with their distortions and exaggerations and had 
been warned that these newspaper excesses were "calculated 
to inflame the people and might possibly result in grave 
damage." 50 The Governor of Georgia also seemed alarmed. 
He readied ten companies of the state militia to protect the 
prisoners, Newt Lee and Leo Frank, in case of an attack upon 
their lives. There had been "persistent rumors" that an at- 
tempt would be made to storm the jail and relieve officials of 
their two celebrated charges. 51 A week after the murder The 
Augusta Chronicle's Atlanta correspondent summed up the 
climate in the state capital. "Feeling here is still high, the 
horror of the deed gripping people fast. The deadline be- 
tween calm and unbridled rage is narrow, and the fear is 
strong that if the guilty [one] is caught at last inflamed people 
will seek to wreak summary punishment." 52 

The newspapers had not only inflamed the public but had 
challenged the mettle of the police as well. Speaking for an 
enraged city, the Constitution demanded that the girl's slayer 
be found: "If ever the men who ferret crime and uphold the 
law in Atlanta are to justify their function it must be in ap- 
prehending the assailant and murderer of Mary Phagan." 53 
The police had quickly arrested seven suspects, 54 but two 
weeks passed without any conclusive evidence about the 
murder being presented to the public. The Constitution re- 
fused to accept what it considered official incompetence and 
displayed a scathing cartoon on the front page of its Sunday 
edition. The cartoon portrayed a woman carrying a scroll 
called "Mary Phagan Mystery" and pointing at a door 



1 6 The Murder of Mary Phagan 

marked "Detective Dept." The woman was saying to herself, 
"I wonder if they're all asleep in there?" 55 

In desperation, or perhaps in an attempt to "scoop" its 
competitors, the Constitution sought to obtain outside aid. 
The paper started a fund to "Bring Burns Here to Solve Mary 
Phagan Mystery," and the next day it expressed the opinion 
that only William J. Burns, "the world's greatest detective," 
could solve this baffling case. 56 A public subscription raised 
enough money to lure Burns to Atlanta, and the famed detec- 
tive dispatched one of his best agents to investigate the situa- 
tion preparatory to his arrival. 57 

The invitation to the "world's greatest detective" was a 
direct attack upon the city police. The record of the police 
provided ample justification for such action. For two years 
preceding Mary Phagan's death, about eighteen Negro 
women had been murdered in the city, but none of the as- 
sailants had ever been found. 58 Although no violent protests 
had erupted when the slayers of Negroes escaped, these un- 
solved murders had left the impression that the police were 
incompetent. The rapidity of the city's growth not only in- 
creased the amount of vice and crime but seemed also to over- 
whelm those charged with upholding the law. "A force of vil- 
lage constables" suddenly found themselves "face to face with 
crime conditions of a great city hall," and could not cope 
with them. 59 The police were frightened. They had re- 
peatedly failed, and this time, with a white victim, inefficiency 
would not be tolerated. The Mayor reflected public sentiment 
when he warned the police: "Find this murderer fast, or be 
fired!" 60 



Four days after the murder a Coroner's Jury began an 
inquest. Leo Frank, the chief witness, related his activities on 
the day of the murder and repeated information he had al- 
ready given to the police. Numerous witnesses corroborated 



The Murder of Mary Phagan 17 

Frank's statements; no one contradicted any of his claims. 

The inquiry also provided a forum for those who ques- 
tioned Frank's moral rectitude. George Epps, a youth who 
lived near the Phagan family, said he rode into town with 
Mary on the fatal day. He stated that she confessed that she 
feared the factory superintendent because he acted in too 
familiar a fashion and made advances to her. 61 A number of 
former employees of the pencil factory also testified that 
Frank flirted and "indulged in familiarities with the women in 
his employ." The sister of a former employee swore that 
when she had come one day to collect her sibling's pay Frank 
had behaved improperly. He had taken a metal box from his 
drawer. "It had a lot of money in it. He looked at it signifi- 
cantly and then looked at me. When he looked at me he 
winked. As he winked he said, 'How about it?' I instantly told 
him that I was a nice girl." 62 

The Coroner's jury ordered both Frank and Lee held for 
further questioning despite the fact that the two detectives 
who had been spending the most time on the investigation, 
Harry Scott of the Pinkerton's and John Black of the city de- 
tective force, testified that "they so far had obtained no con- 
clusive evidence or clues in the baffling mystery. . . ." 63 

On May 11, two days after the inquest ended, a special 
policeman damaged Frank's case further when he revealed 
that a year earlier he had apprehended the superintendent 
"and a young girl in a desolate spot of the woods. . . ." At 
that time the policeman claimed to have obtained a confession 
from Frank that he had taken his young companion "to the 
woods for immoral purposes." M The policeman later ad- 
mitted that he had been mistaken about Frank's having been 
the person he had seen, but this information, unlike the accu- 
sation, never reached the front pages of the newspapers. 

On May 23, the Atlanta police released an affidavit from 
Mrs. Nina Formby, the proprietor of a "rooming house" in 
Atlanta, disclosing that on the day of the murder Frank had 
telephoned her repeatedly and had attempted to secure a room 



1 8 The Murder of Mary Phagan 

for himself and a young girl. Mrs. Formby allegedly informed 
him each time that all her rooms were occupied. The city de- 
tectives announced that "this is one of the most important bits 
of evidence they hold," and indicated strongly that they be- 
lieved Frank to be the culprit. 65 



The crime shocked Atlantans, who not only followed the 
hunt for information about the murderer intently but were 
also ready to believe any tale circulated, no matter how fan- 
tastic. The newspapers needed but to hint at some new item 
of discovery or outlandish conclusion, and within hours the 
account, greatly embroidered, would circulate throughout 
the city. 66 Three days after the killing, the Constitution 
printed an article beneath the headline, "Every Woman and 
Girl Should See Body of Victim and Learn Perils." Most 
females did not see her, but rumors had it that the girl had 
been drugged and rendered helpless before being slain, that 
she was slashed in many places with a knife, and that her 
"breasts had been bitten and gnawed." 67 

It would be impossible to enumerate all the rumors that 
traveled through Atlanta and the state of Georgia after 
Frank's imprisonment, many of them printed in the news- 
papers. The most prominent concerned sex and religion. 
Gossipers authoritatively related that the tenets of the Jewish 
faith forbade the violation of Jewish, but not Gentile, 
women. 68 Other tales were that Frank's wife was about to 
divorce him; that his wife knew he was guilty and therefore 
did not visit him in jail; that he had another wife in Brooklyn; 
that he had had another wife in Brooklyn whom he had 
killed; that he had numerous children out of wedlock; that his 
wife knew all the foregoing facts and had already applied for 
a divorce; that he was a pervert, and that he went out on 
street car lines waiting for young girls, "pulling them off the 
cars in spite of their crying and resistance." 69 It was even 



The Murder of Mary Phagan 19 

said that Frank "was a Mason and the Masons were all for 
him; that he was a Catholic and they were all for him; that he 
was a Jew and the Jews were all for him." 70 

The charge of perversion probably did the most damage. 
The newspapers never clearly explained what was considered 
perverse about Frank, and the word meant different things to 
different people. Everyone could agree that murder and 
rape 71 were perversities. But some would consider the al- 
leged escapades with young girls and the rumored extra- 
marital affairs as indications of sexual abnormality. Later on, 
in court, the prosecutor would make veiled allusions to Frank 
and his supposedly delicate relationship with an office boy. 
This, too, would reinforce the opinions of those who believed 
that Frank was some type of sexual deviant. 

8 

The police desperately needed a conviction; the public 
demanded that Mary Phagan's assailant be found. The So- 
licitor-General of Atlanta's circuit, Hugh M. Dorsey, who 
directed and coordinated the state's case, also needed a convic- 
tion. He had recently prosecuted two important accused 
murderers and had failed each time to convict them. The 
Savannah Morning News would later observe, "Another de- 
feat, and in a case where the feeling was so intense, would 
have been, in all likelihood, the end of Mr. Dorsey as so- 
licitor. . . ." V1 On the other hand, if he successfully prose- 
cuted Mary Phagan's killer, future political success would 
doubtless be assured. Therefore he was concerned about 
putting together a case which would hold up in court. 

The search for the murderer, however, was handicapped 
by the fact that various investigators worked alone, rather 
than in unison. At one point there were four separate groups 
independently groping with the same facts. The Constitu- 
tion reported that "the detectives of police headquarters, who 
were first to investigate the slaying, are now working alone, 



20 The Murder of Mary Phagan 

refusing to give information to anyone. The Pinkertons [hired 
by Frank], who were next retained, are working exclusively. 
Cooperation, however, is found in the joint investigation 
being promoted by Solicitor Dorsey and the Burns agent now 
in the city." 73 The Constitution might have made a mistake 
about the last point because ten days later, when the Burns 
agent left the case, he told reporters that "open opposition 
and efforts to frustrate our work" forced the resignation. 74 
In addition to the major groups, the Journal noted that 
"practically every private detective in Atlanta, and they are 
legion, has . . . been quietly lending his efforts to a solution 
of the mystery." 75 

Friction and competition among groups of detectives made 
it difficult even to assemble a complete and accurate account 
of what was an extremely complex case. But as the days 
passed, it became evident that police, detectives, and the so- 
licitor were focusing their efforts on finding enough material 
to convict Frank. 76 Harry Scott, the head of the Pinkerton 
Detective Agency, although originally hired by Frank, later 
admitted to newspaper reporters that the Pinkerton's had di- 
rected their efforts "to obtain evidence supporting the theory 
that Frank is the slayer." Scott supposedly told one of his 
subordinates that "unless the Jew is convicted the Pinkerton 
Detective Agency would have to get out of Atlanta." 7T 

The findings and opinions of the various investigators 
formed the basis of the information which Solicitor Dorsey 
presented to the Grand Jury when it met on May 23, four 
weeks after the murder, to consider an indictment of Leo 
Frank. The Solicitor brought several witnesses along with 
him who told the jury what the public had been told weeks 
before. The state's case impressed the Grand Jury, which 
deliberated less than ten minutes before granting the indict- 
ment on May 24.™ 

On the very day that the Grand Jury indicted Frank, the 
newspapers in Atlanta headlined an admission from Jim Con- 
ley, a Negro sweeper at the pencil factory, that he had 



The Murder of Mary Phagan 21 

written one of the murder notes. 79 Throughout the rest of 
the case Conley was to be a central figure, bizarre and puz- 
zling, but nevertheless crucial. The police had jailed the 
sweeper two days after Frank's arrest because a foreman had 
informed them that Conley had been trying to wash blood 
from a shirt. Strangely enough, the authorities "were inclined 
to attach little importance to his arrest." No one even bothered 
to have the city bacteriologist test the blood stains on the 
shirt. 80 

The Grand Jury had not been informed of Conley's state- 
ment when considering the case against Frank. It is possible 
that had the Negro's participation been known, he too might 
have been indicted. Moreover, it might have been more diffi- 
cult to indict Frank after the sweeper's incriminating admis- 
sion because the earliest assumption — of both police and 
public — had been that the author of the murder notes had 
probably murdered the little girl also. But the members of the 
Grand Jury, like almost everyone else, found out about 
Conley's revelations from the newspapers. 

According to the newsworthy affidavit, Frank had called 
the sweeper to his office on Friday afternoon, April 26, the 
day before the murder. He had asked Conley if he could 
write, and then, after getting an affirmative answer, handed 
him a note pad and dictated the following phrases: "dear 
mother," and "a long, tall, black negro did this by hisself 
[sic]. 11 Frank allegedly asked him to repeat this "two or three 
times," and then supposedly mumbled something which 
sounded to Conley like "Why should I hang?" Conley stuck 
to this story despite additional questioning. No, he had not 
written anything else. No, he had not seen any dead girl. No, 
he had not been to the factory on Saturday. And so forth. 
The entire truth, Conley maintained on May 24, was in his 
affidavit. He claimed to know nothing else about the crime. 81 

Jim Conley, short, stocky, ginger-colored, was the very 
opposite of the long, tall, black Negro described in the 
murder notes. Twenty-seven years old, he had already served 



22 The Murder of Mary Phagan 

several jail terms for petty thievery besides having been fined 
on many occasions for disorderly conduct. On the morning 
of the murder he had been seen drinking beer and whiskey 
and may even have been drunk. Some people thought that 
Conley "always seemed to be kind of nervous or half drunk." 82 

The authorities had not considered Conley a serious suspect 
until they discovered that he could write. The Negro sweeper 
had originally denied his ability to read and write, but the 
news that he could eventually reached Harry Scott of the 
Pinkertons because of a chance remark made in front of Leo 
Frank. "I know he can write," Frank said, "I have received 
many notes from him asking me to loan him money." tt Scott 
immediately confronted Conley with this information. Forced 
to write, the Negro penned a duplicate of the murder notes 
that appeared almost identical to the originals. 84 

The test took place on May 1 8, six days before the Grand 
Jury indictment. But on May 19, a detective announced that 
"the examination of the handwriting of the negro . . . failed 
to connect him with the writing of the notes." 85 This state- 
ment was not corrected until the release of Conley's first 
affidavit on May 24. 8C 

Conley's sensational revelation failed to impress the editors 
of the Georgian, who considered the Negro's statement "ex- 
ceedingly peculiar." The paper could not understand why 
Frank would have muttered "Why should I hang?" or have 
taken the Negro sweeper into his confidence. It certainly was 
not like Frank to speak so freely. In fact, the superintendent's 
silence since his arrest had been such that newspapers labeled 
him "The Silent Man in the Tower." Therefore Frank's 
alleged remark appeared "entirely outside the realm of prob- 
abilities. . . ." Another improbability was that Frank had 
called Conley to his office the day before the murder and had 
asked him to write a note. This would indicate that the super- 
intendent had been planning the crime ahead of time. Such an 
idea had never been entertained by the investigating author- 
ities because they had concluded from the nature of the 



The Murder of Mary Phagan 23 

murder that the killer must have acted without premedita- 



tion. 87 



Despite the difficulties involved in believing everything in 
Conley's affidavit, the police were enthusiastic about it. They 
considered Conley's sworn statement as the final link in the 
chain of evidence against Frank, or at least that is what they 
led the public to believe. Newport Lanford declared himself 
"perfectly satisfied" that the murder had been solved and 
assured reporters that "Frank will be convicted. He is the 
guilty man and we will show it beyond a doubt." Both the 
Pinkertons and the Burns agent agreed with Lanford. In fact 
the Burns investigator dropped out of the case at this point 
because Solicitor Dorsey informed the chief of the detective 
agency in Atlanta "that the investigation has been so thor- 
ough and successful that, really, the Burns men would not be 
greatly needed any longer." 88 

For public consumption detectives maintained that they 
"never for a moment" thought that Conley might have been 
guilty. Only reluctantly, in fact, did they eventually concede 
that he had written both the notes that were found next to the 
body. 89 Yet doubts remained, and the newspapers continued 
to assert that Conley's tale did not ring true. The inconsis- 
tencies in the Negro's story would have to be cleared up. 
Therefore the sweeper underwent further rounds of inter- 
rogation. Reporters were told that no prisoner had ever been 
put through such severe cross-examinations as Conley. 90 
Pinkerton Detective Scott later explained to a packed court- 
room the procedure he and Atlanta's Chief Detective Lanford 
used to elicit "the truth" from the Negro. "We pointed out 
things in his story that were improbable and told him he must 
do better than that. Anything in his story that looked to be 
out of place we told him wouldn't do." 01 

The lengthy interrogation proved fruitful. On May 28 
Conley made another affidavit in which he added consider- 
ably to his first one and acknowledged his presence at the 
factory on the day of the murder. In his second sworn state- 



24 The Murder of Mary Phagan 

ment Conley recalled that he had been drinking on the morn- 
ing of the murder. He had accidentally met Frank in the 
street, and the superintendent had asked him to come to the 
factory. When they arrived at the pencil plant, Conley 
claimed, he had been instructed to wait on the main floor until 
Frank whistled for him to come up. At about i p.m. the 
whistle sounded, and Conley went up to Frank's office. As 
soon as he reached the inner office, Frank allegedly remarked 
that two female employees were coming up the steps and 
Conley must get into the wardrobe. After the women left 
Frank supposedly dictated the note that Conley alleged he 
had written on Friday. The rest of the second affidavit re- 
peated substantially the things said in the original one. 92 

The Georgian questioned Conley's new tale. "With his first 
affidavit repudiated and worthless," the paper noted, "it will 
be practically impossible to get any court to accept a second 
one." In fact, the Georgian thought the case against Conley 
stronger than that against Frank. After all, Frank had "an- 
swered all the questions" put to him at the Coroner's inquest 
"in a straightforward, unwavering manner, never once being 
trapped in a lie or misstatement," whereas Conley had lied 
continuously. Nevertheless Newport Lanford, the chief of 
detectives, exuded confidence and beamed happily over Con- 
ley's second affidavit, calling it "the final and conclusive piece 
of evidence . . . against Frank." 93 

But the detectives realized that Conley's second affidavit 
had some shortcomings also and therefore they decided to put 
the sweeper through another interrogation "with a view to 
clearing up the weak points in his statement." 94 During the 
course of what the Georgian described as a "merciless sweat- 
ing" 9r> on May 29, Conley's interrogators "dragged sentence 
by sentence from the frightened negro" m{ a more plausible 
explanation. The next morning Atlantans read the results of 
the previous day's "sweating": "CONLEY SAYS HE 
HELPED CARRY BODY OF MARY PHAGAN TO 
PENCIL FACTORY CELLAR." 97 



The Murder of Mary Phagan 25 

The latest of the Conley revelations added significantly to 
his previous affidavits. Conley now alleged that after Frank 
had called him up to the office, the superintendent had told 
him that he had let a girl fall against a machine in the metal 
room and that he wanted Conley to remove her. Conley had 
gone into the room and had found the girl dead. He had re- 
ported this to Frank, but the superintendent had ordered him 
to carry the body to the elevator anyway. Together they had 
taken the corpse to the basement and Conley had dumped her 
in the corner. It was after this that Conley and Frank had re- 
turned to the second floor office, and the sweeper had written 
the notes. The rest of the third affidavit was similar to the 
previous ones except that this time Frank had supposedly 
given the Negro $200, and then took the money back with 
the promise that he would return it again. 98 The Journal re- 
garded Conley's latest remarks as "the most sensational de- 
velopment in the Phagan murder case since the arrest of 
Superintendent Frank," and the detectives considered it "the 
most import link in their chain of evidence against the factory 
official." " 

After his third affidavit, the detectives took Conley back to 
the pencil factory and had him reenact the events of the 
murder day. The sweeper, the Georgian reported, "went 
through the grim drama with a realism that convinced all who 
listened and watched that he at last was telling the whole 
truth." 10 ° 

Shortly after Conley made the last of his sensational state- 
ments he was removed from the police jail, where he had been 
for a month, and placed in a cell in the Fulton County Tower, 
where reporters would have free access to him. But within a 
few days, after Conley had complained that Frank's visitors 
intimidated him with such remarks as "I could shoot you 
through the bars of your cell right now" and "Don't you 
think you ought to be shot?," 101 Solicitor Dorsey petitioned 
the presiding judge of the Fulton County Criminal Court, 
Leonard Roan, to take the prisoner back to the police jail. 



26 The Murder of Mary Phagan 

Dorsey argued that he did not want anyone to tamper with 
Conley u in any manner which might destroy his value as a 
witness." 102 Roan acceded to the Solicitor's request. Once 
the sweeper was back in the police jail, Chief Detective 
Lanford remarked: "We wanted Conley where we could get 
to him at any time we thought advisable." 103 

But the transfer had the effect of insulating the prisoner. In 
the city jail Solicitor Dorsey, or one of his staff members, 
screened Conley's visitors, a thing they could not do had he 
been in the county jail. When Pinkerton Detective Scott 
announced in July that he was reexamining his conclusions as 
to who murdered Mary Phagan, the police immediately cur- 
tailed his access to Jim Conley. Chief Detective Lanford ex- 
plained the action as follows: "We did not want to embarrass 
Scott by requesting him to keep silent and did not risk the 
probability of letting new developments reach Frank's at- 
torneys, therefore we were forced to prevent him from seeing 
the negro." 104 Until August, when Conley would testify in 
court, no one who was skeptical of the Negro's innocence or 
of Frank's guilt was permitted an interview with the sweeper. 

Once the authorities were satisfied with Conley's sworn 
statement, they continued their search for other witnesses 
who might substantiate their case against Leo Frank. The next 
affidavit they obtained came after the arrest of Minola Mc- 
Knight, the Negro cook at Frank's home. Albert McKnight, 
Minola's husband, reportedly informed his employers that his 
wife knew something about Frank's actions on the day of the 
murder. The employers told this to the police, who arrested 
the cook at the beginning of June and held her, without a 
warrant, for twenty-four hours. Reporters heard Mrs. Mc- 
Knight screaming from behind locked doors that she was 
going to be hanged for a crime that she knew nothing 
about. 105 When finally released, after being "quizzed to a 
point of exhaustion," loc she left an affidavit behind her in- 
dicting Leo Frank. 

Mrs. McKnight swore that Frank came home for lunch at 



The Murder of Mary Phagan 27 

about 1: 30 p.m. on the day of the murder but left ten minutes 
later without eating. The cook then claimed that she over- 
heard a conversation the following day between Mrs. Frank 
and her mother, Mrs. Selig. The younger woman supposedly 
told her mother that Frank had been drunk the night before, 
and that he wanted to shoot himself. He allegedly confessed to 
his wife that he was in trouble and that he did not know why 
he would want to commit a crime such as he had earlier in 
the day. Mrs. McKnight swore that her wages had been raised 
twice since the murder, "but it was not for my work, they 
didn't tell me what it was f or . . . but of course I understood 
what they meant. ... I understood it was a tip for me to 
keep quiet." 107 After being released, Minola McKnight repu- 
diated her entire affidavit, but once again the repudiation did 
not make front page headlines as did the accusation. 108 

The imprisonment and methods ysed to obtain a statement 
from the cook finally broke the silence that the Frank family 
had maintained since the superintendent's arrest. In a letter to 
the three Atlanta dailies, Mrs. Frank denounced Solicitor Dor- 
sey and the city police. She castigated the law enforcers for 
torturing Mrs. McKnight "for four hours with the well- 
known third degree process," in order to get the confession. 
Under the circumstances, Mrs. Frank wrote, anyone would 
have confessed to anything. 

Mrs. Frank also used this opportunity to defend her husband 
and deny the gossip about their relationship. "Every conceiv- 
able rumor has been put afloat that would do him and me 
harm, with the public, in spite of the fact" that they are un- 
true. "I know my husband is innocent," she concluded, "he is 
utterly incapable of committing the crime that these detec- 
tives and this solicitor are seeking to fasten upon him." 109 

Solicitor Dorsey, who up to this point had also kept his 
own counsel, now answered Mrs. Frank's accusations: "The 
wife of a man accused of crime would probably be the last 
person to learn all of the facts establishing his guilt, and cer- 
tainly would be the last person to admit his culpability, even 



28 The Murder of Mary Phagan 

though proved by overwhelming evidence to the satisfaction 
of every impartial citizen beyond the possibility of reasonable 
doubt." no 



Two weeks after the public exchange between the Solicitor 
and Mrs. Frank, another significant episode in the Phagan 
murder case made headlines. In the middle of June the maid at 
Mrs. Formby's "rooming house" said that the detectives had 
been pestering her on numerous occasions to make an affidavit 
supporting Mrs. Formby's contention that Frank had phoned 
half a dozen times for a room on the evening of the murder. 
The maid refused because she claimed that there had been no 
such call that evening, and if there had been she certainly 
would have answered the phone. 111 One of Dorsey's assist- 
ants shortly afterwards announced that the state never at- 
tached much importance to Mrs. Formby's affidavit, "except 
for the first few days," and had no intention of using it at the 
trial. 112 One of Frank's attorneys denounced the prosecution 
in these words: 

I see the detectives are gradually giving it out that Mrs. Formby 
will not be called as a witness, although her affidavit has been 
paraded before the public bearing the unqualified endorsement of 
the detective department as being perfectly reliable and true. 
Worse than this, an intimation was published in the newspapers 
that Frank's friends had persuaded her to leave town. In this and 
in many other ways our client has been done a very great in- 
justice. The effort seems to have been not to find the criminal but 
to try by all means to put the crime on Frank. 113 

In July lawyers for the defense "leaked" an affidavit they 
had in their possession from an insurance agent who tried to 
sell Conley insurance on the day of the murder. The sweeper 
had no intention of purchasing any insurance at that time, and 
feeling annoyed about the solicitation threatened the agent: 
"I've killed a girl today; I don't want to kill nobody else." Ac- 



The Murder of Mary Phagan 29 

cording to the affidavit, the insurance agent had gone to the 
police and also to some factory officials (not including Frank) 
on April 29 with his tale, but no one seemed interested. In the 
factory the insurance agent was allegedly told that there were 
no Negroes at the pencil plant on the day of the murder. 114 
The detectives responded quickly to this "leaked" affidavit, 
and the Georgian reported: "CONLEY IN SWEATBOX 
AGAIN." 115 

Despite the state's conviction that Frank had killed Mary 
Phagan, the Grand Jury now wanted to indict Jim Conley. 
The foreman asked Solicitor Dorsey to call the group into ses- 
sion, but he refused to do so. 116 Then the foreman threat- 
ened the Solicitor that action would be taken without him. It 
was "the first time the grand jury [took] up the consideration 
of a criminal case in this county over the protest of the solici- 
tor general." 117 

When the veniremen met, Dorsey pleaded with them not to 
indict the Negro sweeper. The Grand Jury finally acceded to 
his request, but "the solicitor did not win his point without a 
difficult fight. He went in with a mass of evidence showing 
why the indictment of the negro would injure the state's cas6 
against Frank and stayed with the grand jurors for nearly an 
hour and a half." 118 



10 



A careful reading of the three Atlanta newspapers through- 
out the pretrial period reveals that there was a difference in 
their coverage of the case that extended far beyond the quan- 
tity of words expended, the size of the banner headlines, or 
the number of extras put out. 119 Hearst's Georgian, despite 
its sensationalism, and the Journal, its competitor in the after- 
noon, presented a more judicious view of the affair than did 
the morning Constitution, which seemed to assume Frank's 
guilt. 120 One reason for the Constitution's attitude might 
have been that it had friends in the police department, and 



30 The Murder of Mary Phagan 

therefore accepted the official version more easily. Whenever 
the police wished to publicize materials incriminating Frank, 
the Constitution usually got the exclusive story. 121 The Con- 
stitution also gave greater prominence to the theories of the 
police. The Journal's methods might have been influenced by 
the character and integrity of its chief reporter on the case, 
Harold Ross, who later won fame as the editor of The New 
Yorker magazine. Ross would later write, "Without making 
the assertion that Frank is innocent, it may be said that his 
conduct from the outset was that of an innocent man. . . ." 122 

There are two possible explanations for the Georgian's 
approach. In the first place, it was primarily concerned with 
selling newspapers rather than with the guilt or innocence of 
any of the suspects. Hence there would be no reason to con- 
centrate on building up a case against any single individual. 
On the other hand, Hearst had sent some of his top reporters 
to Atlanta after he had purchased the Georgian. He sent addi- 
tional talent after Mary Phagan had been murdered. These 
people were carefully selected on the basis of their journalistic 
skills. It is possible that they were perhaps more sophisticated 
and had learned from their experiences in other cities that the 
authorities, like everyone else, could make mistakes. And since 
they were from out of town, they would not have to keep in 
the good graces of the local authorities to insure tips on future 
stories. It was a Georgian reporter, in fact, who observed that 
Hugh Dorsey "has never shown any unusual skill as a detec- 
tive." 123 The Georgian questioned the nature of the prose- 
cution's evidence so frequently that other newspapers in the 
state charged that the Hearst daily had been "bought to de- 
fend Frank." 124 

It would be inaccurate to state that material favorable to 
Frank did not appear in the Constitution or that the Journal 
and the Georgian constantly showed concern for the pris- 
oner's welfare. But each paper did handle the news differ- 
ently. Whereas the Journal gave a front page headline to the 
item that "Frank's Treatment of Girls in Factory Described 



The Murder of Mary Phagan 31 

as Unimpeachable by One Young Lady Employee," 125 two 
weeks later the Constitution buried a similar comment at the 
bottom of an inside page, where its readers might easily over- 
look it. 120 The Georgian, on the other hand, printed a letter 
from a questioning Atlantan in type large enough to catch the 
eye: 'is not the case against Leo Frank so far presented 
against him palpably weak? And does not the far greater 
weight of evidence now point unmistakably to the negro Con- 
ley as the sole perpetrator of the crime?" 12T One would 
hardly expect the Constitution to give prominence to such a 
comment. Less than two weeks earlier, its readers had been in- 
formed that Conley's narrative "is so straight-forward and co- 
incides so perfectly with other phases that have already been 
brought out that it is said to be indisputable." 128 The great- 
est contrast in coverage, however, occurred ten days before 
the trial opened. Harry Scott, the chief Pinkerton detective 
on the case, changed his mind about the key suspects. The 
Journal's lead read: "PINKERTON'S NOW DECLARE 
LEO M. FRANK IS INNOCENT," ,2 ° whereas the next 
morning's Constitution headlined: "SCOTT BELIEVES 
CONLEY INNOCENT, ASSERTS LANFORD," and in 
smaller type, " 'Open to Conviction' Scott Tells Reporter." 130 

Northern journalists who investigated the affair in Atlanta 
afterwards wrote that the city's newspapers had assumed 
Frank's guilt from the time of his arrest. 131 This was not 
true. The Constitution, alone, assumed Frank's guilt, and even 
that paper severely criticized the police for the way in which 
it had handled the investigation during its earliest stages. 

None of the three dailies commented upon the case editori- 
ally until after the trial was over. Both the Georgian and the 
Journal would later comment about the public hysteria in At- 
lanta during the course of the judicial proceedings, and each 
would suggest the necessity for reexamining the evidence 
against the defendant. 132 The Constitution, on the other 
hand, remained silent for the rest of Frank's life. 



32 The Murder of Mary Phagan 



ii 



Although the newspapers devoted a great deal of space to 
the murder they did not sufficiently explain why the police 
and the populace could so easily accept the indictment against 
Frank. To understand this more fully, an examination of the 
social milieu in which the case unfolded is necessary. The 
keynote to much of Southern society was a commitment to 
tradition and an opposition to change. The Southern heritage, 
moreover, had nurtured a strong in-group loyalty which at 
times manifested itself in a paranoic suspicion of outsiders. 
Leo Frank as a Northerner, an industrialist, and a Jew repre- 
sented everything alien to the culture. 

When rural Southerners flocked to the cities at the end of 
the nineteenth century their impressions of the Jew combined 
the traditional notion of financial omnipotence with the time- 
worn prejudice against strangers. 133 To many, the Jews also 
symbolized the city. Since the Jews dealt mainly in trade and 
commerce, the lifeblood of the town, many considered them 
the urban people, par excellence. The public schools tended 
to glorify rural virtues and depicted the city as the locus of 
evil. Rural dwellers usually held some vague suspicion of ur- 
banites even before their arrival in the big towns; subsequent 
experiences tended to confirm the earlier prejudice. For lack 
of a more specific target, the unpleasant experiences in the 
city could easily be attributed to the mysterious Jew who 
controlled finances, practiced strange customs, and personi- 
fied urban perfidy. 134 

Leo Frank was a Jew. He would not have been condemned 
for that fact alone. But "once suspicion had been directed 
against him there was a universal effort to prove him guilty, 
and every conceivable argument that tended to support the 
theory was evoked, including the fact . . . that he was a 
Jew." 135 A chronicler of the Frank case put this argument 
somewhat differently: "One man, after asserting that there is 



The Murder of Mary Phagan 33 

no prejudice against Frank, because he is a Jew, grows elo- 
quent and says Mary Phagan is our folks." 136 

A variety of other factors, however, complicated Frank's 
situation. He had provoked community wrath as an employer 
of underpaid female labor. "What was uppermost in the 
minds of those who were indignant," The Outlook com- 
mented afterwards, "was the fact that the accused represented 
the employing class, while the victim was an employee." 137 
John Higham wrote that many working class people "saw in 
Frank a symbol of the northern capitalist exploiting southern 
womanhood." 138 Atlantans were further prejudiced against 
the factory superintendent because of his alleged escapades 
with young girls. None of the accusations was ever proved, 
but each charge had a profound effect upon the public. 

Given Southern feelings about the Negro, an attempt 
must be made to understand why the authorities did not build 
up a case around Jim Conley, particularly in view of later 
findings that the proof against Frank was inconclusive. Un- 
fortunately lack of sufficient information makes it impossible 
to arrive at a wholly satisfactory explanation for the decision, 
but some clues may be garnered from the statements of 
Southerners. Tom Watson, the former Populist, would even- 
tually emphasize "the indescribable outrage committed upon 
'the factory girl' in the factory ," 139 thus indicating that at 
this particular time and in this particular case resentment 
against a symbol of alien industrialism took precedence over 
the usual Negro prejudice. And the pastor of the Baptist 
Church attended by Mary Phagan's family wrote: "My feel- 
ings, upon the arrest of the old negro nightwatchman, were to 
the effect that this one old negro would be poor atonement 
for the life of this innocent girl. But, when on the next day, 
the police arrested a Jew, and a Yankee Jew at that, all of the 
inborn prejudice against Jews rose up in a feeling of satisfac- 
tion, that here would be a victim worthy to pay for the 



crime." 140 



The authorities, of course, might have sincerely believed 



34 The Murder of Mary Phagan 

Frank guilty. One of Dorsey's assistants maintained that such 
was the case many years after the trial. 141 Perhaps while ex- 
amining Conley the police had become convinced that parts 
of his story, especially the incriminating remarks about Frank, 
were true. 

There is also a possibility that members of the police force 
had become so deeply committed to the theory of Frank's 
guilt at an early date that evidence obtained afterwards made 
it, at best, psychologically difficult for them to change or, at 
worst, politically inexpedient. The mounting public pressure 
added to their anxiety. The Constitution started a fund to 
bring one of the world's most prominent sleuths to Atlanta to 
solve the murder — William J. Burns. The police felt threat- 
ened. They were forced to act quickly, and perhaps in their 
haste they overlooked materials which under other circum- 
stances might have been more soberly considered. 

The opinions and activities of the police helped to condi- 
tion the public's reaction. The police led the people to believe 
that the strands of hair which had been found on a metal lathe 
in the workroom opposite Frank's office had been "identified 
positively" as that of the dead girl. This, in fact, was not true, 
but it is impossible to discover whether the authorities knew 
that it was false when they released the information to re- 
porters. Similarly the red spots on the floor near the metal 
lathe, called "blood stains" by the police, and repeated as such 
in the newspapers, were proved to be something other than 
human blood, but this information did not reach the public 
until 1 9 14. 

The behavior of officials other than the police might also 
have weighed heavily against Frank in the public's mind. In 
July the members of the Grand Jury wanted to indict Jim 
Conley, but Solicitor Dorsey convinced them not to do so. 
Atlantans might have assumed that Dorsey presented the 
veniremen with arguments compelling enough to dissuade 
them from their intended course. Perhaps the people recalled 
the assurance that the Georgian had given its readers in May: 



The Murder of Mary Phagan 35 

"That the authorities have very important evidence that has 
not yet been disclosed to the public is certain." Even more 
plausible, however, is that the people of Atlanta had assumed, 
and quite naturally, that the Solicitor would not have prose- 
cuted a white man, rather than a Negro, "unless the evidence 
was overwhelming." 142 Two days before the trial began, in 
fact, Hugh Dorsey proclaimed that "the possibility of a 
mistake having been made is very remote." 143 

As Leo Frank prepared himself for court, he confidently 
expected an acquittal. 144 His four weeks in the courtroom, 
however, would provide him with a series of shocking experi- 
ences. He would eventually come to realize that the rumors of 
his alleged indiscretions, and the alien image that he presented, 
significantly affected the course of his trial. 



CHAPTER II 



Prejudice and Perjury 



no trial in Georgia's history rivaled Leo Frank's for 
public interest. No Georgian appeared indifferent to the fate 
of the accused. Even outside Atlanta one could hardly find "a 
hamlet or wayside, city or township in Georgia that [was] not 
submerged head over heels, in interest in the Frank case." 1 
For more than four months the newspapers featured the 
crime above all other subjects, and outside the state the trial 
made front page headlines in the largest cities of the South. 
But a reporter for The Atlanta Constitution lamented that 
"because it is not in New York, the papers of that fickle 
metropolis have not, in all, carried more than a column of the 
entire case." - He also might have mentioned that outside the 
South few people knew that Leo Frank existed. The situation 
would soon change, however, and Georgians would not be 
very happy about it. 



The trial opened in an atmosphere unfavorable to the de- 
fendant. A Georgian reporter observed that "the public has 
not yet become convinced — and may never become con- 
vinced — that Leo Frank is innocent of the crime for which he 
has been indicted." Gossip about the murder had been so 
widespread and the details of the investigation so frequently 
recalled, that some people in Atlanta doubted whether a jury 



Prejudice and Perjury 37 

could be assembled which would "be willing to view the evi- 
dence coolly, without prejudice or without bias." 3 In fact, 
the temper of the crowd surrounding the courthouse was so 
ugly that twenty officers guarded the courtroom, and some- 
one suggested, as a further precaution, that spectators be 
searched for dangerous weapons before entering the build- 
ing. 4 

Leo Frank had engaged two of Georgia's outstanding 
lawyers to defend him. His main counsel, Luther Z. Rosser, 
had a reputation for being "the most persuasive and the most 
domineering lawyer in Atlanta in the art of examining wit- 
nesses." Rosser's associate, Reuben R. Arnold, "perhaps the 
best-known attorney in Georgia," had long been regarded as 
"one of the ablest criminal lawyers in the South." 5 The bril- 
liant reputations of the defense attorneys would eventually 
prove disastrous to Frank's cause because they failed to dis- 
play their forensic talents at the very moment they were most 
needed. For the prosecution Solicitor Hugh Dorsey added 
Frank Hooper, another well-known Georgia attorney. The 
combination of Rosser and Arnold against Dorsey and Hooper 
guaranteed, according to The Atlanta Constitution, the 
"Greatest Legal Battle in the History of Dixie." 6 

The prosecution began with a repetition of published in- 
formation. The state sought to establish, through different 
witnesses, that blood spots on the floor and strands of Mary 
Phagan's hair on a lathe nearby indicated that the murder had 
occurred in the second floor workroom, opposite Frank's 
office, and that the superintendent, the last person known to 
have seen the girl alive, had the opportunity to kill her. Doc- 
tors testified that Mary Phagan's death probably occurred 
between 12:00 and 12:15 p.m. The state also introduced 
Monteen Stover, one of the factory employees, who had ar- 
rived to collect her pay on the day of the murder at 12:05 
p.m., looked into Frank's office, did not see him, waited five 
minutes, and then left the building. This employee's testi- 
mony was especially damaging because at one of his first 



The 




a Georgian 



Read for Profit— GEORGIA* WANT ADS— U Me for Reuults 

| VOL. XI. XO. 20O. ATLANTA, GA., FRIDA\ MAY 23, 1913. 



2 CENTS EVERYWHERE *&£> 



The prosecution and defense 
postulated opposite theories 
as to where and how the 
murder had taken place. 
The diagrams represent the 
two views. 



Courtesy of The Atlanta Georg- 
ian, May 23, 191 3 



THE GEORGIAN ARTIST'S DIACRAM OF 
PENCILFACTORY USED BEFORE GRAND 
JURY TO EXPLAIN PHAGAfr SLAYING 



P1.AX OF THE BUILDING WHERE TRAUKDY OCCURRED, 8HOWK 
RV ARTIST WHO STUDIED IT CAREFULLY. 




THE ATLANTA JOURNAL. 



SUNT 



THEORY OF PHAGAN MURDER ADVANCED BY DEFENSE 



**- — ** 







® 



5^.COh^> W^^V 



_^ -r^=^3 



GS*S»JVK> ^N>QO^> 



3NSfe.1«£KT 







Queatlona aektd witnesses by Attorneys Bosser and Arnold indicate that tha defense may attempt to conrlnoe the Jury that It would hare been poaalbla 

for tha llttla girl to have bean klllad on tha flrat floor of tha factory end bar body later disposed of through a ehuta leading from the first floor to the 

basement at the rear of tha building. According to thia theory the girl w»i met at the foot of the atalra leading from Fraak'a office, taken toward the 

CoUIteSV of The Atlanta Jour- b * ck of *»• building and killed. Her body waa than dragged to the trap door leading to the ohute and dropped into the basement, later, according to tha 

. A J theory, it was taken to the apot where it waa found by Hewt lee. The acoompaaylng drawing waa made from the modal of the factory which la being uaed 

rial, August 10, 1913 



by the defense at the trial. 



40 Prejudice and Perjury 

interrogations, on April 28, Frank had told Chief Detective 
Lanford that Mary Phagan arrived between 12:05 and 12:10 
p.m., and that he had not left his office between 12:00 and 
12:30 p.m. 7 The state's case appeared clear. The prosecution 
would try to prove that Leo Frank murdered Mary Phagan at 
the very time Monteen Stover had waited for her pay. 

During the first week of the trial, testimony of the state's 
witnesses furnished the background for Jim Conley, the 
Negro sweeper, whose story would provide the crux of the 
prosecution's presentation. Most observers agreed that 
Frank's fate rested upon the jurors' willingness to believe the 
sweeper's tale. 8 

When Conley finally reached the witness stand, an obvious 
transformation had taken place in his appearance. Habitually 
he wore dirty clothes and presented a rather shabby if not 
downright filthy, appearance. In the courtroom, though, his 
face was scrubbed, his hair cut and combed, his clothes clean 
and new. 

Solicitor Dorsey led Conley through his paces and the 
Negro responded with alacrity. In the courtroom, Conley 
both added to, and elaborated upon, his earlier affidavits. The 
Journal commented afterwards that the sweeper's glibness 
had a rehearsed air. 9 Nevertheless, Conley unfolded a tale 
filled with painfully vivid detail. 

The sweeper explained that he had arrived in the factory 
on the day of the murder at 8:30 a.m., as he had on other 
Saturdays, and that he spoke with Frank, who instructed him 
to go out, take care of some errands, and then return. The 
superintendent allegedly mentioned that he was expecting a 
young lady who could come to "chat" for awhile. Conley 
then told the court that he had "watched out" for Frank on 
other occasions when ladies came to "chat" and that when 
Frank stamped his foot the sweeper would lock the front 
door; then he would wait in the lobby and unlock the door 
when Frank whistled. 10 

Conley then related how Mary Phagan arrived and went 



Prejudice and Perjury 41 

upstairs. After that he heard footsteps going back to the metal 
workroom (where the prosecution contended that Mary had 
been murdered), a girl scream, and then saw Monteen Stover 
enter the building and go up to the second floor. "She stayed 
there a pretty good while," and then left the building. After 
that Conley heard footsteps tiptoeing to the office and then 
back to the metal room. At that point the sweeper dozed off. 
A stamping foot from the second floor awoke him, and he 
locked the front door. A few moments later the whistle came, 
and Conley unlocked the same door and went up to the super- 
intendent's office. When he arrived he found that 

Mr. Frank was standing up there at the top of the steps and 
shivering and trembling and rubbing his hands. ... He had a lit- 
tle rope in his hands — a long wide piece of cord. His eyes were 
large and they looked right funny. He looked funny out of his 
eyes. His face was red. Yes, he had a cord in his hands just like 
this here cord. After I got up to the top of the steps, he asked me, 
"Did you see that little girl who passed here just a while ago?" 
and I told him I saw one come along there and she come back 
again, and then I saw another one come along there and she hasn't 
come back down, and he says, "Well, that one you say didn't 
come back down, she came into my office awhile ago and wanted 
to know something about her work in my office and I went back 
there to see if the little girl's work had come, and I wanted to be 
with the little girl, and she refused me, and I struck her and I 
guess I struck her too hard and she fell and hit her head against 
something, and I don't know how bad she got hurt. Of course 
you know I ain't built like other men." The reason he said that 
was, I had seen him in a position I haven't seen any other man 
that has got children. I have seen him in the office two or three 
times before Thanksgiving and a lady was in his office, and she 
was sitting down in a chair and she had her clothes up to here, 
and he was down on his knees, and she had her hands on Mr. 
Frank. I have seen him another time there in the packing room 
with a young lady lying on the table, she was on the edge of the 
table when I saw her. He asked me if I wouldn't go back there 
and bring her up so that he could put her somewhere, and he said 



42 Prejudice and Perjury 

to hurry, that there would be money in it for me. When I came 
back there, I found the lady lying flat of [sic] her back with a 
rope around her neck. The cloth was also tied around her neck 
and part of it was under her head like to catch blood. . . . She 
was dead when I went back there and I came back and told Mr. 
Frank the girl was dead and he said, "Sh-Sh!" He told me to go 
back there by the cotton box, get a piece of cloth, put it around 
her and bring her up. 

Conley claimed that he did as he was bid. He rolled the girl 
up in the cloth, tried to pick her up but could not lift the 
bundle to his shoulder, let her fall, and called out to his boss, 
"Mr. Frank, you will have to help me with this girl, she is 
heavy." The sweeper then related that Frank came and 
caught her by the feet and helped Conley take the body to 
the basement, via the elevator, deposited it there, and then 
took the elevator back to the second floor. Conley then re- 
called having followed Frank back to his office. As soon as 
they arrived, the sweeper continued, they heard footsteps 
coming up the stairs and Frank put Conley in the wardrobe. 
After the people left, Frank allegedly released the Negro and 
asked: 

"Can you write?" and I said, "Yes, sir, a little bit," and he taken 
[sic] his pencil to fix up some notes. I was willing to do anything 
to help Mr. Frank because he was a white man and my superin- 
tendent, 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 done that he told 
me to turn over again and I turned over again and I wrote on the 
next page there, and he looked at that and kind of liked it and he 
said that was all right. 

Then Frank allegedly gave Conley another piece of paper, 
dictated another note, approved of what the sweeper wrote, 
and handed him $200. 

After awhile Mr. Frank looked at me and said, "You go down 
there in the basement and you take a lot of trash and burn that 



. 



***** cm % ms ntt 
ruts oc«o *m$mt&m 

Hl^' Li«8 w KgKO IT . 
CM H*lrt -WUM$K W&Y$ 

four :to» r^ 



! 




I ,#*, -^ ISPS- 



^7 // --^ tv x \m 









Hugh Dorsey during his interrogation of Conley. This drawing cap- 
tures the intense interest of the spectators in the trial. 

Courtesy of The Atlanta Constitution, August 5, 191 3 



44 Prejudice and Perjury 

package that's in front of the furnace," and I told him all right. 
But I was afraid to go down there by myself, and Mr. Frank 
wouldn't go down there with me. . . . And I said, "Mr. Frank, 
you are a white man and you done it, and I am not going down 
there and burn that myself." He looked at me then kind of 
frightened and he said, "Let me see that money" and he took the 
money back and put it back in his pocket, and I said, "Is this the 
way you do things?" and he said, "You keep your mouth shut, 
that is all right." And Mr. Frank turned around in his chair and 
looked at the money and he looked back at me and folded his 
hands and looked up and said "Why should I hang? I have 
wealthy people in Brooklyn," and he looked down when he said 
that, and I looked up at him, and he was looking up at the ceiling, 
and I said, "Mr. Frank, what about me?" and he said, "That's all 
right, don't you worry about this thing, you just come back to 
work Monday like you don't know anything, and keep your 
mouth shut, if you get caught I will get you out on bond and 
send you away," and he said, "Can you come back this evening 
and do it?" and I said "Yes, that I was coming to get my money." 
He said, "Well, I am going home to get dinner and you come 
back here in about forty minutes and I will fix the money," and I 
said, "How will I get in?" and he said, "There will be a place for 
you to get in all right, but if you are not coming back let me 
know, and I will take those things and put them down with the 
body," and I said, "All right, I will be back in about forty 
minutes." 

But Conley recalled that he never did return that day. Instead, 
he went to a beer saloon, ate and drank, and then went home, 
where he "laid down across the bed and went to sleep, and 
[I] didn't get up no more until half past six o'clock that 
night. . . ." u 

On the witness stand Conley told his story with such 
dramatic realism that "every spectator in the crowded court- 
room hung on his words." The narrative struck the presiding 
judge as unfit for innocent ears, and after a few hours barred 
women and children from the courtroom for the remainder of 
the sweeper's testimony. The women could not have even the 



Prejudice and Perjury 45 

vicarious pleasure of reading Conley's whole story because 
the newspapers held that "the most startling features of the 
negro's testimony are unprintable." 12 

Rosser and Arnold cross-examined Conley for sixteen hours 
on three consecutive days. By the end they had forced the 
sweeper to admit that he had lied on a number of previous 
occasions, that he had told only partial truths in previous 
affidavits, and that his memory was exceedingly poor except 
for the specific questions which Hugh Dorsey had required 
him to answer. Yet the defense attorneys, in their attempt 
to confuse Conley and catch him in a major misstatement, 
forced him to talk of the other times that he had "watched 
for" Frank and the witness vividly described other women 
who had come to "chat" with the superintendent while 
he had guarded the front door. Most important, however, 
was the sweeper's admission that he had defecated at the 
bottom of the elevator shaft on the morning of the murder. It 
was an extremely significant remark, but its import escaped 
both reporters and jurors. There is no indication, either, that 
Frank's attorneys realized its implications. 13 

Conley's revelations shocked the spectators "into almost 
irresponsible indignation. . . ." After he stepped down from 
the witness stand one reporter wrote, "If so much as 5 per 
cent" of the story sticks, it "likely will serve to convict" 
Frank. The Journal questioned whether "this illiterate negro 
[could] have conceived and fitted together such a set of de- 
tailed circumstances without some foundation in fact?" 14 

The weight of Conley's words assumed greater import be- 
cause the defense attorneys had failed to upset his account. 
Many Georgians assumed that Conley must have told the 
truth because Luther Rosser, "the most dreaded cross- 
examiner at the Georgia bar, and who knows the negro char- 
acter thoroughly . . . was unable to make a dent in the 
negro's story." ,a People believed Conley could not be flus- 
tered because he told what he had seen and done rather than 
what he might have been drilled to say. Fifty years after sit- 



46 Prejudice and Perjury 

ting in the courtroom and listening to the sweeper's testi- 
mony, McLellan Smith, who had covered the trial as a cub 
reporter for the Georgian, was still certain that Conley had 
told the truth. "A man of his mental capacity," Smith insisted, 
"could have been broken if he was lying." 16 

That the defense attorneys permitted Conley to discuss 
previous occasions on which he had "watched for" Frank 
while the superintendent entertained women in his office 
seemed strange to many observers. Why they pursued this 
line of questioning was never explained, but speculators as- 
sumed that Rosser and Arnold felt confident that they could 
break the sweeper's story. After a day of cross-examination, 
however, which failed to change any major aspect of the 
narrative, defense counsel moved to have the testimony re- 
ferring to Frank's alleged assignations struck from the record. 
Instantaneously the prosecutors jumped to their feet. One of 
Dorsey's assistants agreed that the testimony should have been 
ruled out, but he doubted the right of the defense to ask for 
this after having examined the witness on these points. Dorsey 
echoed his assistant's protest: ". . . able attorneys here have 
sat and let testimony enter the records without making pro- 
test, cross-examine him for two days, and twenty-four hours 
later, decide to complain." 17 

The motion to strike incriminating remarks from the rec- 
ord backfired. "By asking that the testimony be eliminated," 
the Constitution wrote, the defense "virtually admit their 
failure to break down Conley." Throughout Atlanta the 
"news spread that the negro had withstood the fire and that 
Frank's attorneys were seeking to have the evidence expunged 
from the records." This serious defense miscalculation "made 
Frank's road to acquittal a thousand times harder to jour- 
ney." 18 

The presiding judge, Leonard S. Roan, allowed Conley 's 
remarks to remain as recorded. The Judge observed that 
while the words "may be extracted from the record ... it is 
an impossibility to withdraw it from the jury's mind." Roan's 



Prejudice and Perjury 47 

ruling electrified the spectators, who "broke out in a wild 
uproar like a bloodthirsty mob at a bull fight." The Judge 
immediately pounded the gavel for order and announced that 
he would tolerate no further demonstration; but courtroom 
decorum was restored "with some difficulty." The Constitu- 
tion reported the scene in a banner headline: "SPONTA- 
NEOUS APPLAUSE GREETS DORSEY'S VICTORY." 
Reuben Arnold, Frank's attorney, sprang to his feet after the 
outburst subsided and announced: "If that happens again I 
shall move for a mistrial." 10 



After Jim Conley finished testifying, the prosecution called 
a few relatively unimportant witnesses and then rested its 
case. The first Atlanta publication to editorialize upon the 
state's presentation was Frost's Magazine, which to that point 
had refrained from any commentary upon the murder. The 
editor of the magazine stated that heretofore comment had 
been withheld because Dorsey and Lanford had given the 
public the impression that they possessed evidence which 
would assure Frank's conviction. After hearing the testimony, 
the editors of Frost's Magazine asserted that Atlanta's Chief 
Detective and the Solicitor both "misled the public. We 
cannot conceive that at the close of the prosecution, before 
the defense has presented one single witness, that it could be 
possible for any juryman to vote for the conviction of Leo M. 
Frank." Frost's Magazine based its conclusions primarily on 
Conley's testimony. "He did not adhere to his original story. 
He was shown by the cross-examination of Attorney Rosser 
to be absolutely unreliable in veracity and memory. One 
thing the negro did was to reply that 'he did not remember' to 
everything that did not tend toward the guilt of Frank, and 
would always fall back to his invented story." The periodical 
assumed that the additions Conley injected in the courtroom 
could have been made up from reading the newspapers 



48 Prejudice and Perjury 

and/or coaching from his attorney or Solicitor Dorsey. Of 
the Solicitor, Frost's Magazine observed, "It is evident that he 
has sought self-aggrandizement in his ruthless effort to make 
out a case where he knew beforehand that he had no case." 20 



When Rosser and Arnold assumed the burden of present- 
ing their client's defense they attempted to show that Frank 
had conducted himself in his usual manner on the day of the 
murder and that he would not have been able to do so if he 
had performed so heinous a crime. Numerous witnesses testi- 
fied to Frank's whereabouts on the fatal day to establish that 
the superintendent did not have enough time alone to commit 
the crime of which Conley had accused him. 

The defense attorneys thought they had a convincing case. 
Conley had sworn to being with Frank at times when other 
persons claimed to have seen the superintendent. None of the 
defense witnesses was impeached; all were of good character; 
and practically all were white — an important consideration 
with a Southern jury. 

The problem of time loomed largest in Conley 's narrative 
and Frank's refutation. According to the sweeper, Mary 
Phagan had arrived in the pencil factory to collect her pay 
before Monteen Stover. Miss Stover swore that she had been 
in Frank's outer office from 12:05 to 12:10 p.m., and then 
left. The motorman and conductor of the trolley car on 
which Mary Phagan had come to town testified that she left 
the trolley at 12: 10 p.m. Other witnesses agreed that it took 
about two to four minutes to walk from the trolley station to 
the factory. Therefore either Monteen Stover or Jim Conley 
had made a mistake. Two employees who claimed that they 
had arrived at 1 1:45 A - M - to collect their pay had come after 
1 :oo p.m. according to the sweeper. 

Frank claimed that he had gone home for lunch at 1:00 



Prejudice and Perjury 49 

p.m. The defense introduced witnesses who had seen the 
superintendent between 1:00 and 1:30 p.m. Another state 
witness, Albert McKnight, had sworn that he had seen Frank 
at home at 1:30 p.m. Yet Conlcy had testified that he and 
Frank had been in the factory at 1:30 p.m. Furthermore, 
Frank's attorneys produced witnesses who attested to the 
superintendent's whereabouts during most of the period that 
Conley claimed they had been together. According to the 
sweeper, and others, it would have taken Frank and Conley 
more than half an hour, if they had worked as quickly as pos- 
sible, to perform the time-consuming tasks of murdering the 
girl, bringing the body to the cellar, returning to the superin- 
tendent's office on the second floor, hiding in the wardrobe, 
and writing the murder notes.- 1 Yet, with the exception of 
about eighteen minutes (between approximately 12:02 and 
12:20), Frank's time seemed to have been accounted for be- 
tween 11:30 a.m. and 1:30 p.m. The Constitution observed 
that the "chain of testimony, forged with a number of links, 
has established a seemingly unbreakable corroboration of 
Frank's account of his whereabouts. . . ." 22 

Leo Frank climaxed the defense presentation with a four- 
hour effort to convince the jurors of his innocence. He briefly 
outlined his life history, his reasons for coming to Atlanta, 
and his actions on the day of the murder. At times he 
specifically touched on points that the prosecution had scored 
against him. He explained that Montecn Stover may not have 
seen him in his office when she arrived because when he sat at 
his desk "it is impossible for me to sec out into the outer hall 
when the safe door is open, as it was that morning, and not 
only is it impossible for me to sec out, but it is impossible for 
people to sec in and sec me there." On the other hand, he 
thought he might have been out of his office momentarily 
because of "a call of nature." The superintendent branded 
Conley's entire narrative "a tissue of lies," and again denied 
participating in the crime. A Georgian reporter wrote after- 
wards that "Frank was far and away the very best witness the 




Leo Frank on the witness stand. 

Courtesy of The Atlanta Constitution, August 19, 191 3 



Prejudice and Perjury 51 

defense has put forward," and the Constitution observed that 
Frank's words "carried the ring of truth in every sentence." 2A 

Altogether the defense introduced more than two hundred 
witnesses, including over one hundred who testified to 
Frank's good character, and at least a score who insisted that 
they would never believe Jim Conley under oath or otherwise 
because of his notorious reputation for lying. 24 When Solici- 
tor Dorsey cross-examined these witnesses he asked them if 
they knew of Frank's reputation for lascivious behavior? The 
solicitor also asked witnesses if they had heard of Frank 
putting his arm around some girls and bouncing others on his 
lap? - 5 Dorsey even asked one man if he had ever heard of 
Frank "kissing girls and playing with their nipples on their 
breast . . . ?"- G It mattered not how the witnesses re- 
sponded. Conley had already said enough to damage Frank's 
reputation, and the reiteration of the subject refreshed the 
jurors' memories. At one point Solicitor Dorsey's questions 
resulted in an unexpected outburst from the defendant's 
mother, Mrs. Rae Frank. Dorsey asked a witness if he had 
ever heard of "Frank taking a little girl to Druid Hills [Park], 
setting her on his lap and playing with her?" Before the 
witness could answer Mrs. Frank jumped up and shouted at 
the prosecutor, "No, nor you either — you dog! " 2T 

Dorsey implied that Frank might also be a homosexual. He 
asked a former office boy if Frank had not made improper ad- 
vances toward him, and though the boy denied it, the insinua- 
tion that Frank indulged himself in this fashion "went from 
mouth to mouth gaining credence as it went." - 8 

After the defense concluded its presentation the state 
offered rebuttal witnesses. Most of them swore that Frank did 
have a reputation for lascivious behavior. The state also 
brought forth George Kendley, a trolley car conductor, who 
remembered seeing Mary Phagan walking in the direction of 
the factory at about noon on the day of the murder. The de- 
fense rebutted with people who made incriminating remarks 
about Kendley. One man claimed to have heard the trolley 



52 Prejudice and Perjury 

conductor say that "Frank was nothing but an old Jew and 
they ought to take him out and hang him anyhow." Another 
recalled that Kendley expressed the sentiment "that Frank 
was guilty as a snake, and should be hung. . . ." 29 The re- 
marks attributed to the trolley conductor were less important 
for their content than for the attitudes expressed. It was the 
first time that any indication of overt anti-Semitism appeared 
in the court. 



The lawyers for both sides finally concluded their cases 
after four weeks of testimony. The state received whatever 
advantage might accrue from having both the opening and 
closing arguments before the jury with Frank's lawyers sand- 
wiched in between. 

In his summary argument, one of Solicitor Dorsey's assis- 
tants suggested that Frank was a Dr. Jekyll and Mr. Hyde, 
presenting one facet of his personality to friends and relatives 
and another to the girls working in the pencil factory. Arnold 
and Rosser accused the prosecutors as well as the city detec- 
tives of misrepresentation and duplicity. Arnold suggested 
that "if Frank hadn't been a Jew there would never have been 
any prosecution against him" and that the entire case was the 
"greatest frame-up in the history of the state." Finally, he 
likened the scene in Atlanta to the Dreyfus affair in France: 
"the savagry and venom is . . . the same." 30 

Though Rosser and Arnold, as well as Hooper, spoke well, 
Hugh Dorsey received the most extravagant praise from the 
newspapers. In his concluding argument, characterized by the 
Constitution as "one of the most wonderful efforts ever made 
at the Georgia bar," 31 the Solicitor reviewed the state's evi- 
dence and asked the jurors to bear in mind that Rosser and 
Arnold, "two of the ablest lawyers in the country" had been 
unable to break Jim Conlcy. "They" introduced the race 
question, Dorsey reminded the jurors, "the word Jew never 



Prejudice and Perjury 53 

escaped our lips." The prosecutor spoke kind words of Dis- 
raeli, Judah P. Benjamin, and the Strauss brothers, but he also 
emphasized the activities of such Jewish criminals as Abe 
Ruef, the former Mayor of San Francisco, Abe Hummell, 
"the rascally lawyer," and "Schwartz, who killed a little girl 
in New York. . . . [The Jews] rise to heights sublime, but 
they also sink to the lowest depths of degradation!" Dorsey 
dismissed the argument that Frank had a good character. He 
noted that Judas Iscariot and Benedict Arnold were con- 
sidered honorable men before they committed their treacher- 
ous deeds. 32 

"A perfect case" 3a is what the Solicitor claimed the state 
had against the accused. He cited, as proof of this, part of a 
letter the defense had introduced which Frank wrote to his 
uncle on the day of the murder. The letter read, in part: "It is 
too short a time since you left for anything startling to have 
developed down here." Dorsey found this sentence "pregnant 
with significance, which [bore] the ear-marks of the guilty 
conscience. . . ." "Too short! Too short! Startling!" Dorsey 
fulminated before the jury. "But 'Too short a time,' and that 
itself shows that the dastardly deed was done in an incredibly 
short time." 34 Dorsey also mentioned in his summation that 
Mrs. Frank did not visit her husband until two weeks after he 
was imprisoned because she knew that he was guilty. 35 

Then the Solicitor moved on to the murder notes. He con- 
tended that proof that these notes had originated in a white 
man's mind was supplied by the use of the words "Negro" 
and "did." If Conley had relied upon his own vocabulary, 
Dorsey argued, he would have employed the expressions 
"nigger" and "done" since Negroes never used the other 
terms. At this point Rosser interrupted the Solicitor and dis- 
puted Dorsey on the words that Conley had written. Rosser 
noted that according to the stenographic report of the trial, 
Conley had used the word "did" on a number of occasions. 
Dorsey responded that the court stenographer must have 
recorded the word incorrectly, but the stenographer then 



54 Prejudice and Perjury 

announced to the court that "the shorthand character for 
'did' is very different from 'done' [and] there's no reason for a 
reporter confusing the two." Dorsey refused to yield, how- 
ever, and announced, "Let it go then, Til trust the jury on 
it." :iG He then resumed his summary. 

Dramatic incidents in the courtroom punctuated the So- 
licitor's final talk. On the first day that he spoke, Mary 
Phagan's mother "became hysterical and let out several pierc- 
ing screams. . . ." She was overcome with emotion just at the 
moment that Dorsey pointed his finger at Frank and declared 
that the child gave her life to defend her honor. Dorsey's 
"impassioned reference to the slain girl . . . had many in the 
courtroom in tears." ;i7 Dorsey's performance obviously 
pleased the crowd. As he left the courthouse each day the 
admiring throng greeted him with thunderous ovations. 

The temper of the crowd frightened the editors of all three 
Atlanta dailies. They petitioned Judge Roan not to let the 
case go to the jury on a Saturday, the second day of Dorsey's 
summation, because they feared that if the jurors' verdict 
came that night, a riot similar to that of 1906 might occur. 38 
Judge Roan agreed, and that Saturday afternoon he con- 
ferred, in the presence of the jury, with Atlanta's Chief of 
Police and the Colonel of the Fifth Georgia Regiment as to 
how they would handle the crowds after the announcement 
of the verdict. Both men were known, by sight, to the jurors, 
and the defense later alleged that this indicated to the jury 
that a riot would ensue should Frank be declared innocent. 30 
In any case Roan interrupted Dorsey before he concluded his 
final argument, thus forcing a recess until the following 
Monday. 

As Hugh Dorsey entered the courtroom to conclude his 
argument, the assembled throng welcomed him with a noisy, 
enthusiastic demonstration. The apprehensive judge de- 
manded that the sheriff quell the demonstration and threat- 
ened to clear the courtroom if his order was not obeyed. 
"Your honor," the Sheriff responded, "that is the only way it 



Prejudice and Perjury 55 

can be stopped." 40 Roan then held a hurried conference with 
defense counsel and suggested that neither they nor their 
client be present to hear the jury's verdict. Rosser and Arnold 
agreed. They neither asked for, nor received, Frank's consent 
for this action. 41 

The solicitor then proceeded to speak. After three hours, 
he finally ended "the most remarkable speech which has ever 
been delivered in the Fulton county courthouse" with the 
words, "Guilty, guilty, guilty!" The chimes of a nearby 
Catholic Church tolled the hour of noon as Dorsey finished 
his oration. The punctuation of the bell before each of the 
concluding words "cut like a chill to the hearts of many who 
shivered involuntarily." Judge Roan then charged the jurors, 
and they retired to make their decision. 4 - 

The jury — a representative cross-section of Atlanta's resi- 
dents 4,t — needed less than four hours to decide the case. 
When the men returned to their chairs, the courtroom was 
empty except for a few officials, newspapermen, and friends 
of the defendant. "It took no student of human nature to 
read . . . the verdict. . . . On the face of each juror was 
the drawn look of men who had been compelled through 
duty to do an awful thing — to consign a fellow creature to 
the gallows. There was no mistaking that look. The strongest 
of the men shook as if some strange ailment had stricken them 
[sic]." The foreman pronounced the judgment: Guilty! But 
as Judge Roan attempted to poll the individual members, their 
responses were drowned by the din which had erupted from 
the outside as soon as a reporter had thrust his head out of the 
window and shouted the verdict. Roan requested that the 
windows be shut. Again he took his poll; each juror re- 
sponded, "guilty." Prudence, Roan decided, required the 
sentencing at some other time. He therefore adjourned the 
court. 44 

Leo Frank awaited the verdict in his prison cell. Sur- 
rounded by cheerful friends and relatives, he appeared con- 
fident that the jury would acquit him. But at 5:25 p.m. a 



56 Prejudice and Perjury 

friend brought the news, which cast a sudden pall over the 
group. "My God!" Frank exclaimed, "even the jury was 
influenced by mob law. I am as innocent as I was one year 
ago." Mrs. Frank sobbed bitterly and then fainted. "The 
silence was dreadful." 45 

But outside the courtroom "a mob thousands strong . . . 
went wild with joy. . . ." 4C The next day the Constitution 
reported that trolley car conductors left their stations and 
joined the rejoicing throngs; women in fashionable social 
circles clapped hands; the local ballpark posted the news on 
the scoreboard and fans in the grandstands cheered wildly. 
Around the courthouse "a veritable honeycomb of human- 
ity" yelled itself hoarse as the 

cry of guilty took winged flight from lip to lip. It traveled like 
the rattle of musketry. Then came a combined shout that rose to 
the sky. Hats went into the air. Women wept and shouted by 
turns. As Solicitor Dorsey appeared in the doorway of the court- 
house while the crowd yelled its reception of the Frank verdict, 
there came a mighty roar. . . . The Solicitor reached no further 
than the sidewalk. While mounted men rode like Cossacks 
through the human swarm, three muscular men slung Mr. Dorsey 
on their shoulders and passed him over the heads of the crowd 
across the street to his office. With hat raised and tears coursing 
down his cheeks, the victor in Georgia's most noted criminal 
battle was tumbled over a shrieking throng that wildly pro- 
claimed its admiration. Few will live to see another such demon- 
stration. 47 

Judge Roan and members of the jury were also greeted 
with applause and huzzahs as they left the courthouse. Mary 
Phagan's stepfather gratefully shook hands with each of the 
jurors, in turn, as they posed for newspaper photographers. 
The minister of Mary Phagan's church later recalled that the 
jury did exactly as he wished, and at the time, he "applauded 
the verdict." 48 

Throughout the state Georgians received the news of 
Frank's guilt "with great enthusiasm." In Greensboro, "a 



Prejudice and Perjury 57 

wave of actual jubilation swept over the city," and The 
Savannah Morning News editorialized that "those who 
viewed the case ... on the evidence and independently of 
their sympathies or their wishes are not surprised by the 
verdict." 49 

The day after Frank had been found guilty, Judge Roan 
secretly convened the principals in the case and sentenced 
Frank to hang. The proceedings had been arranged quickly 
and without fanfare because Roan feared the consequences of 
having Frank appear in public again. Not even Mrs. Frank 
was informed of the event. She did hear about it, but by the 
time she reached the court her husband was just returning to 
jail. She accompanied him. 50 

In a public statement, after Roan's sentencing, Frank's 
lawyers characterized the previous weeks in the courtroom as 
"a farce and not in any way a trial." They condemned the 
fact that "the temper of the public mind . . . invaded the 
courtroom and invaded the streets and made itself manifest at 
every turn the jury made; and it was just as impossible for this 
jury to escape the effects of this public feeling as if they had 
been turned loose and had been permitted to mingle with the 
people." The attorneys then announced their intention to 
appeal the decision. 51 



Frank's lawyers apparently assumed that they were han- 
dling a routine murder case. They completely misjudged the 
nature and extent of the public hostility against Frank, as was 
evident by their failure to request a change of venue. Further- 
more, their trial strategy was not well planned. By cross- 
examining Jim Conley for sixteen hours — without eliciting 
anything favorable from him — they merely reinforced in the 
minds of the jurors the impression that the Negro had been 
telling the truth. But they also managed to obtain Conley's 
admission that he had defecated at the bottom of the elevator 



58 Prejudice and Perjury 

shaft on the morning of the murder. The next day, however, 
police noticed formed feces at the bottom of the shaft before 
the elevator descended and mashed it. Since the elevator 
always touched the bottom of the shaft when it reached the 
basement, the question of whose waste was observed should 
have been pursued. If it was indeed Conley's, then the 
elevator had not been to the basement since the previous 
morning. And if the elevator had not been to the basement, 
how did Mary Phagan's body get there? It is possible that an 
exploration of this single point could have blown open the 
state's entire case because the prosecution insisted that the girl 
had been murdered on the second floor and had been removed 
to the lower level via the elevator. Abraham Cahan, the 
famous editor of the Jewish Forward, later lamented that 
"when one reads the long stenographic report of this cross 
examination [of Conley] one cannot help thinking that in 
New York or Chicago, you could find dozens of lawyers who 
would have done a much better job." 62 

Moreover, Frank's lawyers showed little foresight or imag- 
ination. On direct examination by the prosecution, the city 
bacteriologist discussed blood chips allegedly found in the 
workroom opposite Frank's office where the girl supposedly 
had been murdered. In cross-examining this witness, the de- 
fense attorneys did not inquire about the strands of hair 
which the prosecution claimed had been pulled from Mary 
Phagan's head. In 19 14 a more zealous investigator would get 
the bacteriologist to admit that he could find no resemblance 
between the hair given to him for analysis and the hair found 
on the dead girl. 53 Also, the defense called Northern friends, 
Jews, and factory employees — who really could not have said 
otherwise and retained their positions — to substantiate Frank's 
good character. The prosecution rebutted this character evi- 
dence with testimony of native Southerners who swore that 
Frank did have a reputation for ungentlemanly behavior. As 
was to be expected, the jury found the testimony of its neigh- 
bors more credible than that of the "alien" strangers. In the 



Prejudice and Perjury 59 

early 1950s the Anti-Defamation League in Atlanta commis- 
sioned a study of the Frank case. After considerable investiga- 
tion DeWitt H. Roberts, the author of the work, concluded 
that "the defense of Leo Frank was one of the most ill- 
conducted in the history of Georgia jurisprudence." 54 



In retrospect it is difficult to see how the outcome of the 
trial could have been different. As Edmund M. Morgan, co- 
author of The Legacy of Sacco and Vanzetti, observed, 
"every experienced judge and every experienced lawyer 
know [that] it is almost impossible to secure a verdict which 
runs counter to the settled convictions of the community." 55 
And in the South, where, according to Ellen Glasgow, the 
Virginia novelist, the people never developed the habit of 
independent thought — "there was, indeed, no need for think- 
ing when everybody thought alike, or, rather, when to think 
differently meant to be ostracized" — 5C dire social and eco- 
nomic consequences awaited those jurors who would forget 
tradition and ignore their fellow citizens' attitudes toward 
Leo Frank. 

Atlantaqs had freely expressed their hostile views both 
before and during the trial. On the day the jury rendered its 
verdict The Augusta Chronicle summarized the existing feel- 
ing: 

The last day of the criminal trial which has absorbed the city's 
attention for four weeks was marked by an impatience which was 
evident in every move of the public. There was a nervous tension 
apparent in the very atmosphere today. Wherever two or three 
persons were gathered there was a discussion of the probable out- 
come, of the time the jury would be out . . . and more than all 
else — of the possibility of "something happening" in the case of 
acquittal. 

That is the black shadow which has hung over Atlanta for 
a month — the unspoken fear of "trouble"— of violence. Nobody 



60 Prejudice and Perjury 

will admit there was such a danger — but the feeling was there. 
There was a fear of the same element which brought about the 
great Atlanta riot of 1907 [sic] — the lower element; the people of 
the back streets and the alleys; the near-beer saloons and the pool 
rooms. 

That is recognized as the real reason the trial of Leo Frank was 
abruptly adjourned Saturday and a recess taken until today. The 
Saturday night crowd in Atlanta, beer-drinking, blind-tiger fre- 
quenting, is not an assemblage loving law and order. A verdict 
which displeased these sansculottes of the Marietta street might 
well result in trouble should it be published in flaring extras after 
dark. 

The report that state troops have been given some kind of 
warning to be ready will not down. . . . There was vigorous 
denial that any steps had been contemplated — but still the rumors 
persisted, and even yet it still persists. 

The Atlanta papers have been wiser than in the days before the 
riot when the headlines of at least one paper inflamed the mob to 
action. There has been no word of the fear of violence, no men- 
tion of troops or riot; a careful avoidance of stirring up passion 
except in the printing of the court record, with its inflammatory 
speeches. Atlanta wants no more trouble of the kind which 
brought a reign of terror in 1907 [sic].* 7 

The antagonism toward Frank expressed itself more clearly 
than just a "spirit" in the air. The defense attorneys and 
Judge Roan had received communications during the trial to 
the effect that they would not leave the courtroom alive if the 
"damned Jew" were turned loose. There is some indication 
that the jurors were similarly threatened. Crowds outside the 
courthouse chanted, "Hang the Jew." As early as May, 191 3, 
"a well-known Atlanta woman" wrote to the Georgian that 
this "is the first time a Jew has ever been in any serious 
trouble in Atlanta, and see how ready is every one to believe 
the worst of him." M 

The Governor of Georgia had consulted with the com- 
manding officer of the national guard regiment in Atlanta just 
before the trial ended, and had alerted him to the possible 



Prejudice and Perjury 61 

danger of a riot after the jury returned its verdict. The militia 
commandant said his troops would be ready if necessary. 
Two years later a North Georgia newspaperman, who had 
attended the trial, wrote, "There is no use mincing words 
when a human life is at stake. If the jury in the Frank case had 
brought in a verdict of 'not guilty' the defendant would have 
been lynched." 59 



CHAPTER III 



An American Dreyfus 



although the frank case attracted widespread atten- 
tion in the South, few people in the North heard about it until 
after the trial ended. Very soon thereafter, however, the news 
spread among the most powerful and influential Jews in the 
country. Frank's Atlanta friends considered him the victim of 
a bloodthirsty anti-Semitic attack. The Macon Daily Tele- 
graph reported their reaction the day after Frank had been 
sentenced to hang: 

... the long case and its bitterness has hurt the city greatly in 
that it has opened a seemingly impassable chasm between the 
people of the Jewish race and the Gentiles. It has broken friend- 
ships of years, has divided the races, brought about bitterness 
deeply regretted by all factions. The friends who rallied to the 
defense of Leo Frank feel that racial prejudice has much to do 
with the verdict. They are convinced that Frank was not prose- 
cuted but persecuted. They refuse to believe he had a fair 
trial. . . , 1 

Convinced that justice had not triumphed, Frank's Atlanta 
friends sought assistance from Northern Jews who might be 
able to suggest a future course of action. Among those con- 
sulted were members of the American Jewish Committee. 



The American Jewish Committee had been established in 
1906 for the purpose of aiding Jews "in all countries where 



An American Dreyfus 63 

their civil or religious rights were endangered or denied." 2 It 
had been formed by a group of wealthy Jews, of German and 
American descent, who were concerned about the precarious 
position of American Jewry at the beginning of the twentieth 
century. For the most part, the founders of the American 
Jewish Committee had either come to the United States in the 
mid-nineteenth century or were descended from those Jews 
who had come somewhat earlier. In their own lifetime they 
had experienced no organized persecution and had found un- 
limited economic opportunities. As they prospered, they 
moved up the social ladder, leaving many of the old-world 
Jewish practices behind them. 3 

In the 1 880s groups of Eastern European Jews began mi- 
grating to this country. The Americanized Jews had qualms 
about the influx of these people and regarded them as a threat 
to their own status in this country. They feared that the 
peculiar costumes and customs of the Eastern Europeans 
would reflect adversely upon all Jews in this country. But 
despite these feelings, no concerted effort was made to thwart 
the attempts of those who insisted upon coming. Beginning in 
the early part of the twentieth century, the American Jews 
even encouraged immigration so that the Eastern Europeans 
could obtain refuge from persecution. Once the newcomers 
arrived, the Americans provided them with a good deal of 
assistance. By helping the Eastern Europeans adjust to the 
New World, the established Jews hoped to lessen the anti- 
Semitism which, they correctly assumed, might spring up 
after the new immigrants settled here. One rabbi of long resi- 
dence in the United States stated the issue cogently. The 
future of American Judaism will be powerfully affected by 
the Russian Jews, he noted. For "our own safety [and] our 
own good name" we must take them by the hand and show 
them how Jews live in the United States. 4 



64 An American Dreyfus 



While the members of the Northern Jewish community 
made efforts to assimilate the immigrant Jews, the leaders of 
the New South — the railroad magnates and owners of cotton 
mills and factories — in their endeavor to build an industrial 
community patterned after the North, actively sought the 
immigration of foreign white labor. Southern state govern- 
ments established immigration bureaus in the hope of attract- 
ing Northern European settlers. 5 The Atlanta Constitution 
explained that the Georgia Immigrant Association wanted 
only the "Best Type" of immigrant. "Best Type" euphemis- 
tically meant Northern European stock and not "the lower- 
class foreigners who have swarmed into northern cities." 
Manufacturers Record, a major Southern business publication 
which frequently spoke out on the South 's immigrant need, 
stated the position more succinctly: "The South will have 
human sewage under no consideration." The Southern experi- 
ment proved abortive, however, since few "desirable" immi- 
grants came, and on at least one occasion "carefully selected 
Northwest Europeans" turned out to be natives of Southern 
Europe. 6 

Disillusionment with the type of foreigners arriving killed 
the state government programs for selective immigration. 
Except for the New South's champions, the people welcomed 
an end to the policy of encouraging settlers. By the onset of 
Woodrow Wilson's administration, in 191 3, Southern Con- 
gressmen were practically unanimous in their opposition to 
immigration from Southern and Eastern Europe. 7 



3 

Between 1880 and 191 5 Italians and Jews outnumbered all 
other Southern and Eastern Europeans entering this country. 
Several Italian settlements were established in the South dur- 



An American Dreyfus 65 

ing the 1 890s and invariably suffered local harassment. Nine- 
teen Italians were lynched in Louisiana during the decade 
because they seemed to fraternize with Negroes and because 
many Southerners regarded them as just "another inferior 
race to be disciplined." 8 Czechs and Slovaks also had diffi- 
culty in the South. Forty years after they had established a 
colony south of Petersburg, Virginia, the "natives" still re- 
mained unreconciled to their presence. 9 

Jews, on the other hand, had been in the South since 
Colonial times. Southern attitudes toward them had been an 
amalgam of affection, tolerance, curiosity, suspicion, and re- 
jection. These views, which for the most part characterized 
Northerners also, might come to the fore singly, and in 
combination, on different occasions. What complicated the 
expression of these feelings, however, was the traditional 
Southern antipathy to those whose behavior and origins 
differed, even slightly, from those of the dominant group of 
white, Anglo-Saxon Protestants. During periods of relative 
calm Jews suffered no harm; during periods of stress, though, 
ancient, and often unconscious, antagonisms became more 
marked. During the great spasms of society, Jews were often 
pointed to as the source of the troubles. 

Some prejudice toward Jews existed in the American 
colonies, but there did not seem to be much difference in 
prejudice between the North and the South. Although voting 
privileges were generally restricted to Protestants, the Jews, 
in fact, occupied a relatively high status in Colonial times. 
Merle Curti has attributed this "to the fact that they con- 
tributed to commercial prosperity. . . . The jealousy fre- 
quently occasioned by such success was offset in part by the 
common assumption in a rapidly expanding economy that 
there was room for everyone to get ahead." 10 Later on, after 
most of the political disabilities had been abolished, the Jews 
in this country still comprised an infinitesimal percentage of 
the population, and until the Civil War were not subjected to 
any organized persecution. 



66 An American Dreyfus 

Since the main problem of the ante-bellum South revolved 
around slavery, Jews did not loom as a threat because, in their 
quest for amalgamation, they had accepted the institution. At 
one point this was, indeed, the test of a true Southerner. Thus 
Jews could rise to the highest positions in the South and often 
did. A South Carolina Jew served as Chief Justice of the state 
Supreme Court before the Civil War, and his son served as 
governor of the state after the war. Florida sent David Yulee 
to the Senate in 1 845, and eight years later Louisiana elected 
Judah P. Benjamin to the same body. During the Civil War 
not only did Benjamin serve as Confederate Secretary of State, 
but the Quartermaster-General, the Surgeon-General, several 
Congressmen, and other high Confederate officials were 
Jews. 11 

Jews also participated actively in the professional and 
commercial life of the region. In Atlanta, for example, a Jew 
founded the city's largest department store, and Abraham 
Cahan, editor of a prominent New York City Yiddish lan- 
guage newspaper in the early part of the twentieth century, 
noted that it was fairly common for the large Southern law 
firms to have both Jewish and Gentile partners. 12 

Coexisting with this apparent acceptance of Jews, however, 
there remained ever-present and persisitent elements of anti- 
Semitic feeling. During the Jacksonian era, for example, Jews 
were considered "rebels against God's purpose," and many a 
Southern Christian mother lulled her children to sleep with 
fables of Jewish vices. In one popular nursery rhyme, "The 
Jew's Daughter" enticed a young Gentile boy into her home, 
"where no one would hear his call": 

She sat him on a chair of gold 
And gave him sugar sweet 
She laid him on the dresser 
And killed him like a sheep. 

An incident concerning the sale of a slave girl to a Jewish 
woman in 1859 reveals the prevalent Judaeophobic attitudes. 



An American Dreyfus 67 

On the day the slave was to be sent to her new mistress she 
disappeared. After a long search, her master found the child 
hiding under a bed. When queried about her actions, the girl 
pleaded that she did not want to be sold to a Jew. "I don't 
want to go to live with Miss Isaacs," the youngster explained. 
"Miss Isaacs is a Jew; and if the Jews kill the Lord and Master, 
what won't they do to a poor little nigger like me?" 13 

Although Judah P. Benjamin became Secretary of State in 
the Confederacy, during the Civil War Southern Jews 
aroused "pronounced anti-Semitic sentiment" for the first 
time. They were accused of being "merciless speculators, 
army slackers, and blockade-runners across the land frontiers 
to the North." Benjamin remained a popular target through- 
out the war. Almost every one of his political enemies re- 
ferred to his Jewish antecedents when attacking him, and one 
critic applied to him the sobriquet "Judas Iscariot Benjamin." 
Denunciation of Jewish merchants was a common practice in 
many towns of Georgia, and the Southern Illustrated News 
observed, "All that the Jew possesses is a plentiful lot of 
money, together with the scorn of the world." 14 

In some quarters of the South, after the Civil War, Jews 
were considered worthy members of society. This opinion 
prevailed, primarily, among those who wished for commercial 
growth and those who hoped to imitate Northern industrial 
accomplishments. Hence one newspaper editor hailed their 
presence "as an auspicious sign." "Where there are no Jews," 
the writer continued, "there is no money to be made." An- 
other newspaper noted that "a sober, steadier, and more in- 
dustrious and law abiding class of population . . . [does] not 
exist." 15 In 1900 a leading Atlanta merchant was held up as 
"a typical exponent of the characteristics of his race [who] 
has happily exemplified that spirit and progressive enterprise 
for which his people are noted all over the world." 16 

Jews also occupied a unique social position in the South. 
One peddler recalled that the Christians he dealt with held 
him in special regard. Frequently asked about the Bible, he 



68 An American Dreyfus 

was often required to settle religious disputes "because I was a 
Jew and they all looked upon me as an authority." He also 
noted that some rural Southerners were so backward that 
they considered him as some sort of Christian. "I remember 
well," he reminisced, "being asked time and again 'Are you a 
Baptist Jew or a Methodist Jew?' " And Harry Golden, who 
has insisted that the South has a tradition of philo-Semitism, 
wrote that in the rural South people held the Jewish popula- 
tion almost as a private possession: "He is 'our Jew' to small- 
town Southerners, and they often take care of him with a zeal 
and devotion otherwise bestowed only on the Confederate 
monument in the square." 17 

Despite indications of affection, a strong anti-Semitic bias 
remained. In an 1878 campaign speech Senator John T. 
Morgan of Alabama referred to a candidate as a "Jew-dog," 
and the following year Senator Morgan opposed the appoint- 
ment of a postmaster in Montgomery because he had been 
indorsed "by a parcel of Jews." In Nashville, Tennessee, in 
1878, Christian mothers threatened to withdraw their chil- 
dren from a private school for girls after two Jews had been 
accepted. The principal yielded to the pressure and rescinded 
the enrollments. And in a Rome, Georgia, courtroom in 1873, 
the plaintiff's attorney declared that one cannot accept the 
word of a Jew "even under oath." 18 Louisiana had anti- 
Semitic demonstrations in the late 1880s. Then, in 1893, farm- 
ers in the Bayou state wrecked Jewish stores in a particularly 
harsh outburst. That same year Mississippi night riders burned 
Jewish farmhouses, and a Baltimore minister preached: "Of 
all the dirty creatures who have befouled this earth, the Jew 
is the slimiest." 19 

Religious teachings may have intensified these attacks and, 
in fact, may have generated them. Horace M. Kallen, the 
Jewish philosopher, believed that the roots of anti-Semitism 
lay in Christians teaching "that the Jews are the enemies of 
God and of mankind. . . ." 20 And J. F. Brown, in his study, 
"The Origin of the Anti-Semitic Attitude," concluded that 



An American Dreyfus 69 

Christians believe "the Savior was murdered by Jews. Most 
enlightened adults would scoff at this as a reason for anti- 
Semitism. The fact that we all heard of it at an impressionable 
age, the fact that we heard it from parents who themselves 
entertained at least a latent anti-Semitism, makes it an impor- 
tant factor and means that we probably all harbor some anti- 
Semitism unconsciously." 21 The late Southern journalist, 
W. J. Cash, has written that "All the protests of scholars have 
been quite unavailing to erase from the popular mind [in the 
South] the notion that it was the Jew who crucified Jesus." 
And two other Southerners have recalled that in their child- 
hood, u The veriest infant was made acquainted with the 
lapses of the ancient Jews, and all God's wrath at their be- 
havior was thundered in his ears." 22 

Religious factors alone cannot account for the marked up- 
surge in anti-Semitic feelings at the end of the nineteenth 
century. Psychologists have found that prejudicial attacks are 
likely to occur among those groups that feel most uncomfort- 
able and ill at ease with the world. Deprivation, whether it be 
social, economic, or emotional, seems characteristic of the 
bigoted person. To alleviate the built-up anger, reduce the ac- 
cumulated tension, and achieve some modicum of satisfaction, 
the anguished individual generally attributes his plight to 
some vulnerable and seemingly defenseless minority group. 
He sees it as the harbinger of evil because consciously and 
realistically he cannot acknowledge the true cause of his situa- 
tion. It is also the most distressed people who are aggressively 
hostile to those outside the pale, and fiercely proud of their 
own community's accomplishments. 23 In his own studies 
John Higham discovered that at the end of the nineteenth 
century anti-Semitism in this country "was strongest in those 
sectors of the population where a particularly explosive com- 
bination of social discontent and nationalistic aggression pre- 
vailed." 24 

To a large extent, all the above generalizations aptly char- 
acterize significant segments of the Southern population at the 



70 An American Dreyfus 

beginning of the twentieth century. For the most part, as C. 
Vann Woodward has pointed out, the depressed urban 
workers in the South during this period were "frustrated in 
their age-long, and eternally losing struggle against a hostile 
industrial economy." Hence they were receptive "to exciting 
crusades against more vulnerable antagonists: against any- 
thing strange, and therefore evil." 25 Southerners, fearing also 
that outsiders would undermine regional mores, defended 
their version of the American creed with fanatical zeal. As a 
group, no people in the United States at the turn of the cen- 
tury was more insecure, harassed, indigent, paranoid, and na- 
tionalistic than those living below the Mason-Dixon line. 
Thus the culture provided a rich soil for the fertilization of 
anti-Semitic aggression. 



In the decade before the first World War anti-Semitic out- 
bursts throughout the country upset thoughtful American 
Jews. 20 Fifteen hundred hostile workers threatened to strike 
a Massachusetts shoe factory in 1906 unless the firm dismissed 
its nine Jewish employees. A year later a faculty member at 
Columbia's Teachers College asked a colleague to refrain 
from attending a university banquet because he had invited a 
friend "who does not like Jews." And during the academic 
year 191 3-1 9 14 some students in Utica, New York, orga- 
nized a "Kill Kyke Klan." 27 

Antagonistic attitudes toward Jews existed in Georgia also. 
There had been a prosperous and tightly knit Jewish com- 
munity in Georgia since Colonial times. Jews had always 
occupied a relatively high occupational status, 28 and though 
there had been prejudice toward them 20 no major problems 
developed with Gentile neighbors — except during the Civil 
War — before the twentieth century. In Atlanta the Jews 
never constituted a significant percentage of the city's popula- 
tion, but with the influx of Russian Jews in the 1 890s prob- 



An American Dreyfus 71 

lems developed between the new immigrants and the estab- 
lished Jewish community, and between the Russians and the 
working class Atlantans. The German Jews, who had come 
earlier, "blackballed" the Russians from their social clubs and 
did not encourage them to reside in their neighborhoods. 
Eventually the older and newer immigrants did work har- 
moniously in establishing some of the Jewish community's 
social services, but at least through 191 5 "there were constant 
overtones of dissension between the leaders of the two 
groups." 30 

The newly arrived Europeans came into greater contact 
with Negroes than did the older Jewish community of At- 
lanta. This inadvertently led to conflict between Gentiles and 
Jews. The newcomers purchased small businesses, including 
saloons, where Negroes gathered. Sensual pictures of nude 
white women allegedly decorated the walls of many of these 
establishments, and rumors circulated that even the labels on 
the liquor bottles were designed to incite Negro passions. 
Many Atlantans assumed that the saloons "served as a gather- 
ing place and as a breeding-ground for criminals." When 
Negroes got drunk and caused disturbances, the nearby 
whites reproached the saloon owners for the mischief. 31 

The Jews also found themselves blamed for the chaotic 
conditions in the city. They were charged with the operation 
of "dope dives," gambling dens, and brothels which flourished 
in Atlanta. 32 Whereas the American Jews of long standing in 
this country had at one time been separated in the public mind 
from the more recent immigrants, after 1900, John Higham 
wrote, "the differentiation lessened in actuality and almost 
vanished in popular thought." 33 This worked to the dis- 
advantage of Atlanta's older Jewish residents. Adding to the 
stereotyped impressions were the major muckraking stories in 
national periodicals and the report of a federal government 
investigating committee which concluded that Jews predom- 
inated in the American white slave trade. 34 While none of 
these reports named Atlanta Jews among the offenders, the 



72 An American Dreyfus 

publicity, combined with white Atlantans' preconceived atti- 
tudes, led to increased antagonisms toward the Jews. 35 

The negative feelings alarmed the Jews, especially when 
they were expressed under the guise of objectivity or praise. 
In Georgia, Lucian Lamar Knight, the patrician historian of 
the state, ostensibly praised Jews for their commercial, and 
other, talents. He noted, for example, that Jews "are money 
makers to such an extent that the roll-call of the whole 
Hebrew population can be made from the tax-book." In good 
times and bad, he added, the Jew "has money to lend if not to 
burn and before he is ready to execute his will he owns the 
grocery-store, the meat-market, the grog-shop, the planning- 
mill, the newspaper, the hotel and the bank." E. A. Ross, one 
of the more prominent progressives, and a highly respected 
sociologist, stated quite clearly, in 19 14: "The fact that 
pleasure-loving Jewish businessmen spare Jewesses, but pur- 
sue Gentile girls, excites bitter comment." 36 

One of the most outspoken anti-Semitic progressives, 
Burton J. Hendrick, frightened almost all Jews with his 
articles in McClure's Magazine in 1907 and 191 3, on "The 
Great Jewish Invasion." In the first one he acknowledged that 
the Jews were ambitious and successful, in American terms, 
but he concluded by asking whether the Jew has "in himself 
the stuff of which Americans are made?" Hendrick's second 
work depicted the activities of a Jewish conspiracy seeking to 
seize the country. He catalogued the different industries in 
the United States which "the Jews absolutely control," and 
ominously predicted that the Jewish influence in this country 
within the next hundred years would "be almost preponderat- 
ing." 37 

5 

The growth of anti-Semitism in the United States paralleled 
the intensification of hostility toward Jews in France and 
Russia. In 1894 French military officials erroneously con- 



An American Dreyfus 73 

victed Alfred Dreyfus, a captain attached to the general staff, 
of espionage. It "was not a deliberate plot to frame an inno- 
cent man. It was the outcome of a reasonable suspicion acted 
on by dislike, some circumstantial evidence and instinctive 
prejudice." 38 As more details became available, however, 
many people interpreted the sentence as a classic case of anti- 
Semitism. France eventually exonerated Dreyfus, but not 
until the country had been rocked by protests from both 
defendants and antagonists of the now celebrated Jew. The 
treatment accorded Dreyfus, and the fact that he had been 
convicted on the basis of circumstantial evidence and religious 
prejudice, later made his name a synonym for Jews who were 
unjustly accused and then persecuted because of their faith. 39 

The Dreyfus affair had barely passed from the news stories 
when, in 191 1, a Jewish laborer in a Russian brick factory, 
Mendel Beiliss, 40 was arrested on the charge of having 
murdered a 12 -year-old Christian boy so that he might use the 
child's blood for religious purposes. The allegation of "ritual 
murder" had been made against Jews as far back as 1 144 in 
England, and records indicated that over one hundred such 
complaints had been made in Europe during the next eight 
centuries. Yet none received the worldwide attention ac- 
corded to Mendel Beiliss, who was imprisoned for two years 
before his court appearance in October, 191 3. Ultimately, a 
jury of peasants acquitted him, but before the decision had 
been rendered, millions of people had been alerted to Beiliss' 
plight, had denounced the prejudicial slur, and had demanded 
that he be set free. In the United States mass protest meetings 
were held in Boston, Chicago, Cincinnati, and Milwaukee. 
New York's State Assembly went on record in opposition to 
the trial, and in the United States House of Representatives 
Chicago's Adolph Sabath introduced a resolution calling for 
the withdrawal of the "false, senseless, and unfounded charges 
and accusations. . . ." 41 

The attack on Dreyfus and Beiliss alarmed American 
Jews 42 and made them especially apprehensive about the in- 



74 An American Dreyfus 

creasing number of anti-Semitic attacks in the United States. 
The American Hebrew feared "that the different cases of dis- 
crimination [in this country] are not isloated instances but 
part of a whole social tendency." 43 The circumstances sur- 
rounding Leo Frank's conviction filtered North shortly be- 
fore Mendel Beiliss went on trial. Because of the treatment 
accorded Dreyfus and Beiliss, and the accelerating hostility in 
the United States, America's most prominent Jews received 
the news from Atlanta with great anxiety. 



At the beginning of September, 191 3, Louis Marshall, 
President of the American Jewish Committee, received three 
letters from anguished Atlanta Jews. Two did not state their 
problem clearly but the third spelled out what the others 
mysteriously alluded to: "I would like to enlist your assis- 
tance in what is without doubt an American 'Dreyfus' case 
that has just developed in Atlanta." The writer summarized 
the Leo Frank case and stated his opinion that the "evidence 
against Frank is purely prejudice and perjury. The feeling 
against the D Jew is so bitter that the jury was intimi- 
dated and feared for their own lives, which undoubtedly 
would have been in danger had any other verdict been 
rendered." 44 

Other members of the American Jewish Committee re- 
ceived similar communications. Cyrus Adler, in Philadelphia, 
heard that there was "violent anti- Jewish sentiment in At- 
lanta," and Cyrus Sulzberger, in New York, received a letter 
from a resident of Columbus, Georgia, who had learned from 
his Atlanta friends of the "fearful state of affairs as to this 
case." 45 These letters were funneled to the American Jewish 
Committee's president, and as he digested the material, he, 
too, concluded "that this case is almost a second Dreyfus 
affair." 46 

Marshall decided that "it would be most unfortunate if 



An American Dreyfus 75 

anything were done . . . from the standpoint of the Jews. 
Whatever is done must be done as a matter of justice, and any 
action that is taken should emanate from non-Jewish 
sources/' 4? The American Jewish Committee President under- 
stood the sensitivity that Southerners felt about Northern 
interference and feared that anti-Semitism would spread if 
Northern Jews led a campaign to overthrow the verdict against 
Frank. Marshall counseled that "there is only one way of deal- 
ing with this matter . . . and that is, in a quiet, unobtrusive 
manner to bring influence to bear on the Southern press," to 
use its position in creating "a wholesome public opinion 
which will free this unfortunate young man from the terrible 
judgment which rests against him." 48 



When the American Jewish Committee met in executive 
session to discuss Leo Frank for the first time, the general 
opinion seemed to be that Frank's conviction resulted both 
from an outburst of anti-Semitism in Atlanta and a newspaper 
campaign which forced the police to find a victim quickly. 
The members of the Committee interpreted the situation as 
another Dreyfus affair and proof of virulent anti-Semitism in 
the United States. They viewed what happened to Frank as a 
threat to the status of all American Jews. The Committee 
members were all the more alarmed because in recent decades 
anti-Semitic attacks had multiplied at a frightening pace, not- 
withstanding their vigorous efforts at counteraction. The 
conviction of Frank could not go unchallenged. American 
Jewry would have to fight back. 

But in spite of its sympathy for Frank, and its concern over 
the position of the Jews in America, the American Jewish 
Committee did not act hastily. Jacob Schiff suggested raising a 
fund to help Frank, but another member thought that this 
would be imprudent because reports would circulate to the 
effect that other Jews were financing him "and the question 



j 6 An American Dreyfus 

would thus become a Jewish question. It is very important 
that we should prevent that." The Committee resolved to 
take no official action, although its members, as individuals, 
might do as they thought best. In explaining this action a year 
later, Louis Marshall noted that the American Jewish Com- 
mittee did not want "to be considered as championing the 
cause of Jews who are convicted of crime." 49 

Frank's friends in Atlanta had been anxiously awaiting the 
American Jewish Committee's decision. After the Committee 
decided to refrain from giving any official assistance, Louis 
Marshall wrote to Herbert Haas, head of the legal firm de- 
fending Frank, that while the organization, as such, could not 
make any contributions towards a legal fund, a number of the 
members had indicated that if a new trial were granted, and 
additional finances were necessary, they would be willing to 
contribute "to a reasonable extent." 50 But despite the cau- 
tious tone of this letter, Marshall, in his private capacity, 
would provide vigorous support and would actively partici- 
pate in all the legal decisions in the months to follow. What- 
ever efforts Northern Jews desired to make, however, would 
have to remain in abeyance. Legal avenues had not been ex- 
hausted and prudence dictated patience until the appeals court 
issued its verdict. 



CHAPTER IV 



The First Appeal 



while northern jews deliberated upon a course of 
action, the Atlanta attorneys prepared their appeal. They did 
not intend to let the jurors' verdict rest without a fight, and 
no sooner did the trial end than work began on the next brief. 
Leonard Roan, the trial judge, would be the first to hear their 
plea. According to a 1906 Constitutional Amendment in 
Georgia, an appeal in a capital case could be based only upon 
errors in law, and the appellate judge would not have the au- 
thority to reevaluate the evidence. 1 Frank's counsel, there- 
fore, stressed the procedural irregularities which prevailed 
during the trial. 

The appeal contained one hundred and fifteen points, in- 
cluding affidavits attesting to the alleged prejudice of two of 
the jurors, A. H. Henslee and M. Johenning, towards the de- 
fendant. Eight people swore that they heard Henslee express 
hostile sentiments towards Frank before the trial commenced, 
and one recalled that shortly after Frank's arrest he overheard 
Henslee remark: "I am glad they indicted the God damn Jew. 
They ought to take him out and lynch him. And if I get on 
that jury I'd hang that Jew sure." Three members of one 
family swore to having heard prejudicial remarks by Johen- 
ning. 2 

The defense also submitted affidavits from Atlantans who 
witnessed the trial attesting that the jury had heard the 



78 The First Appeal 

crowds outside the courtroom and had seen the public dem- 
onstrations. Other defense motions included the assertion that 
Conley's testimony, relating to Frank's alleged sexual perver- 
sions, should never have been admitted into the courtroom; 
and that the verdict was both without evidence to support it 
and contrary to the weight of the evidence. 3 

To the charges made by the defense, Solicitor Dorsey 
countered with affidavits from eleven of the twelve jurors 
(the twelfth was out of town on business), who swore that 
they did not hear cheering or applause from outside the 
courtroom before they had rendered their verdict. They con- 
tended that they made up their minds strictly on the evidence 
presented and that the public clamor did not affect their de- 
cision. 4 Henslee and Johenning made additional statements, 
swearing that they entered the jury box ready to be con- 
vinced by either side. Both qualified their affidavits to some 
degree. Henslee indicated that together with others he had 
read about Frank in the newspapers and had discussed him 
with various people but that he had never formed any opinion 
"further than that 'whoever killed Mary Phagan ought to 
hang.' " Johenning stated that he had at one time indicated 
that the outlook for Frank, based upon newspaper accounts, 
did not "seem to be very bright for him," and that he (Johen- 
ning) thought that Frank would "have a hard time in getting 
loose." 5 

Once again Rosser and Arnold presented Frank's case be- 
fore Judge Roan, and once again Dorsey and Hooper argued 
for the state. The defense attorneys underscored their original 
arguments: the evidence did not warrant the verdict and 
prejudice precluded a fair trial. "It is the most horrible perse- 
cution of a Jew since the death of Christ," Arnold ex- 
claimed. 

Dorsey and Hooper maintained that Frank had received a 
fair trial. Hooper dismissed the defense's assertion that dem- 
onstrations might have prevented the jury from conscien- 
tiously doing its duty. If such were the case, Hooper ex- 



The First Appeal 79 

plained, the state would never get a conviction, for each 
defendant could arrange for his friends to demonstrate in his 
behalf, and this would cause an automatic mistrial. The state 
also contended that affirmative action by Judge Roan would 
put the jury system in peril and shatter the laws of the state. 
To grant a new trial, Dorsey concluded, would be "a slap in 
the face of justice." 7 

Judge Roan denied the defense's motion. Along with his 
decision, however, the Judge issued a most peculiar statement, 
one which could not help but gratify Frank's supporters and 
puzzle everyone else: 

I have thought about this case more than any other I have tried. I 
am not certain of the man's guilt. With all the thought I have put 
on this case, I am not thoroughly convinced that Frank is guilty 
or innocent. The jury was convinced. There is no room to doubt 
that. I feel it is my duty to order that the motion for a new trial 
be overruled. 8 

Frank's counsel may have been disappointed with Roan's 
decision, but they certainly were not disheartened. "I recall 
your remarks upon the subject of incompetent and weak 
judges," Herbert Haas wrote to Louis Marshall. "The presid- 
ing officer in this case tries to do his duty, but I fear he is 
lamentably weak." The Atlanta attorney viewed the future 
optimistically. "Our Supreme Court," Haas continued in his 
letter, "has held more than once that it will reverse the judg- 
ment of the lower court declining a motion for a new trial 
where, in the bill of exceptions, it is certified that the presid- 
ing judge himself is in doubt as to the guilt of the defen- 
dant." 9 

The Atlanta Georgian found difficulty in accepting Roan's 
"amazing decision." "Could anything be more astonishing 
than this?" the Georgian asked in a lead editorial. If Roan 
does not know whether Frank is guilty, how can the people 
know? "It would seem that Judge Roan has written into the 
case an objection so large and overshadowing that the other 
115 sink into insignificance and that the [Georgia] Supreme 



80 The First Appeal 

Court will order a new trial on Judge Roan's decision, if for 
no other reason." When the trial judge is in doubt, the edi- 
torial concluded, "is it not time to pause before legal murder 
is added to the long list of other crimes in our State?" 10 

The Georgian, however, expressed a minority opinion in 
the state. The Way cross Herald and the Greensboro Herald- 
Journal, on the other hand, expressed what appeared to have 
been the sentiment of most Georgians. The Way cross Herald 
editorialized: "It was none of Judge Roan's business to be 
convinced of Frank's guilt. . . . The jury was fully con- 
vinced and said so. It was purely up to the jury and not Judge 
Roan." The Herald- Journal, while "surprised" at Roan's 
"ignorance," sarcastically noted that "there are plenty of 
people right here in Greensboro, Greene County, and else- 
where that know better than that. Why, they've never heard 
one word of evidence, as Judge Roan [has], but they know 
absolutely that Frank is guilty. There are some mighty smart 
people in the world." In the face of Roan's acknowledged 
doubt, one Georgia jurist tried to explain the trial judge's 
refusal to grant a new trial: "The judge must stand for re- 
election in a year." ll 

There is reason to surmise that Judge Roan believed Frank 
innocent but feared an outburst of mob violence if he granted 
another trial. He allegedly confided to a friend that had he 
granted the defense's request, the Governor would "not have 
enough troops to control the mob," which would certainly 
have gathered as the news spread. Furthermore, in a conversa- 
tion with another friend shortly after the decision, Roan 
asked what people thought of his unusual comment. "I told 
him," the friend later wrote to the Georgia Prison Commis- 
sion and Governor John Slaton, "that some people thought it 
was eminently proper for him to certify his doubts, and 
others thought it highly improper. . . ." Speaking for him- 
self, the friend claimed to have told Roan that "if I had felt as 
[you] did, I certainly would have granted a new trial. [Roan] 
then said, 'Well suppose I had, then that dreadful mob spirit 



The First Appeal 81 

would have broken out again, and now when it goes to the 
[Georgia] Supreme Court and comes back, maybe he can get 
a fair trial.' " 12 



Six weeks after Roan denied the appeal for a new trial, 
Rosser and Arnold argued Frank's case before the Georgia 
Supreme Court. Because of the unusual nature of the case, 
and its exceptionally long written record, counsel for both 
sides were permitted to speak for two hours apiece, twice the 
normal length. In such time Rosser and Arnold could do little 
more than reiterate their oft-stated themes, that prejudice and 
perjury had convicted Frank. They centered their appeal, 
however, upon Judge Roan's expression of doubt. The de- 
fense attorneys mentioned half a dozen legal citations, show- 
ing that where the trial judge had expressed doubt, a new trial 
had been granted. 13 

Thomas Felder, Georgia's Attorney-General, assisting 
Hugh Dorsey in the presentation before the Supreme Court, 
expressed the state's position that not only was the evidence 
against Frank "mountain-high" but also that Judge Roan 
should never have certified his doubt in the bill of excep- 
tions. 14 After both sides completed their arguments, the at- 
torneys retired to await the decision. 

A month later the Supreme Court voted four to two to 
uphold Judge Roan's ruling in denying a new trial. 15 Judge 
Samuel C. Atkinson summarized the majority conclusions. He 
dismissed the accusation of prejudicial jurors with the ex- 
planation that when the impartiality of the jurors is in ques- 
tion, the trial judge must decide the point and the Supreme 
Court will not reverse the decision "unless it appears that 
there has been abuse of discretion." Though spectators ex- 
pressed their enthusiastic approval of events in the presence of 
the jury on two occasions, this did not "impugn the fairness 
of the trial." "The general rule," Judge Atkinson explained, 



82 The First Appeal 

"is that the conduct of a spectator during the trial of a case 
will not be ground for a reversal of the judgment, unless a 
ruling upon such conduct is invoked from the judge at the 



time it occurs." 1G 



Conley's testimony was ruled admissible not only because it 
explained his presence at the factory on the day of the murder 
but also because of the "peculiar opportunity" it afforded him 
to have knowledge of the crime. Although certain portions of 
the sweeper's testimony tended to incriminate Frank as the 
perpetrator of other crimes, this testimony was ruled admis- 
sible as "material and relevant" to the issue at hand. Conley's 
account of Frank's alleged previous conduct tended to render 
his tale more credible, Atkinson wrote, and also helped to ex- 
plain Frank's motivation. 17 

Finally, when Atkinson came to the point concerning 
Judge Roan's personal expression of doubt, the Supreme 
Court Justice said that the rule is that even if the judge con- 
siders a case weak, if he overrules a motion for a new trial 
despite his own personal doubts, "his legal judgment ex- 
pressed in overruling the motion will control; and if there is 
sufficient evidence to support the verdict, this court will not 
interfere because of the judge's oral expression as to his 
opinion." Taking the case as a whole, the Supreme Court 
majority found that 

the evidence tended to show a practice, plan, system, or scheme 
on the part of the accused to have lascivious or adulterous asso- 
ciation with certain of his employees and other women at his 
office or place of business. ... It tended to show a motive on 
the part of the accused, inducing him to seek to have criminal 
intimacy with the girl who was killed, and, upon her resistance, 
to commit murder to conceal the crime. 18 

Justices Beck and Fish dissented from the majority but 
confined their argument to Conley's testimony. Using the 
same legal citations as the majority, they concluded that evi- 
dence as to Frank's alleged perversion should never have been 
admitted to the courtroom. "It is perfectly clear to us," they 



The First Appeal 83 

wrote, "that evidence of prior acts of lasciviousness com- 
mitted by the defendant ... did not tend to prove a pre- 
existing design, system, plan, or scheme, directed toward the 
making of an assault upon the deceased or killing her to pre- 
vent its disclosure." To admit such evidence, they concluded, 
was calculated to prejudice the defendant in the minds of the 
jurors and thereby deprive him of a fair trial. Justices Beck 
and Fish made no reference to the issue of Judge Roan's ex- 
pression of doubt, nor did they comment either upon the al- 
leged prejudices of two of the jurors. They devoted their 
entire dissent to one main point: that evidence of any other 
crimes allegedly committed by the defendant was inadmis- 
sible. 19 

Six months after the trial, Frank's position seemed worse 
than it had been the previous August. But the prisoner's 
friends, who considered him to have been victimized by a 
gross miscarriage of justice, were not willing to accept the 
judgment of the Georgia Supreme Court as final. Renewed 
efforts would have to be made to rally support for Frank 
throughout the nation. And so those who were most con- 
cerned with his welfare began working harder to win his 
freedom. 



CHAPTER V 



Tom Watson 

and William J. Burns 



while awaiting the Supreme Court's decision the defense 
prepared for the next trial. Although the lawyers had ex- 
pected a ruling in Frank's favor, even an adverse decision 
necessitated preparation because another appeal would have 
to be made. The Atlanta attorneys had solicited Northern 
Jews for financial assistance, and with the money received 
they had hired additional associates, including the world- 
renowned detective, William J. Burns. 1 Investigators dis- 
covered new evidence, obtained new affidavits, and prevailed 
upon prosecution witnesses to repudiate their original testi- 
mony. Influential Jews alerted newspapers to Leo Frank's 
plight, and the nation's press published forceful editorials at- 
tacking Georgia justice. Mobilization of these forces required 
financing and leadership; Northern Jews provided both. 



Soon after the Georgia Supreme Court had refused Frank a 
new trial, The Atlanta Journal published the results of an 
interview with the state biologist who had examined Mary 
Phagan's body shortly after her death. A microscopic study 
of one of the prosecution's main clues, the hair found on the 
lathe which Mary Phagan used, led the biologist to conclude 



Tom Watson and William J. Burns 85 

that the hair did not belong to the dead girl. He relayed this 
information to Hugh Dorsey, but the Solicitor ignored it. 
The Journal confronted Dorsey with the biologist's findings 
and asked why he maintained that the hair belonged to Mary 
Phagan. "I did not depend on [the biologist's] testimony," 
Dorsey answered, "other witnesses in the case swore that the 
hair was that of Mary Phagan, and that sufficed to establish 
my point." 2 Atlanta's Southern Ruralist, which had con- 
demned Dorsey 's methods earlier, repeated its censure: 
"Prejudice is the mildest possible term for such conduct. Such 
official misrepresentation of fact ... is the very murder of 
justice itself." 3 

During the next few weeks the defense released a series of 
affidavits from prosecution witnesses repudiating their testi- 
mony. Hearst's Georgian headlined the first retraction: "Plot 
to Hang Frank." The paper related how defense counsel ob- 
tained an affidavit from Albert McKnight, . husband of the 
Frank family cook, stating that he had been bribed to swear 
that he had seen Frank act peculiarly on the day of Mary 
Phagan's death. McKnight now maintained that he had not 
seen Frank that day and summarized his retraction in one 
sentence: "Most everything I said on the stand was a lie." 4 
When the affidavit became public, McKnight disappeared. 

The next retraction came from New York. Mrs. Nina 
Formby, the proprietor of the "rooming house" Frank had 
allegedly telephoned on* the night of the murder, told The 
New York Times that she wished to change her story. Mrs. 
Formby described how police had plied her with liquor and 
had encouraged her to relate an imaginary episode concerning 
Leo Frank. The woman stated that because of her position the 
police had "unduly influenced" her and had intimated that it 
would be prudent for her to help them. 5 Atlanta's Chief De- 
tective, Newport Lanford, refused to believe Mrs. Formby's 
latest recollection: "The idea that Mrs. Formby is the author 
of the statement purporting to come from her is the most 
absurd thing I ever heard of." 6 



86 Tom Watson and William J. Burns 

Shortly after Mrs. Formby's recantation, Mary Phagan's 
friend, George Epps, Jr., repudiated the statements that he 
had made at the Coroner's inquest and the trial. Epps asserted 
that a detective had forced him to lie but that now he wished 
to tell the truth. In his newest affidavit Epps recalled having 
seen Mary Phagan on the trolley, but since he had been seated 
behind her they engaged in no conversation aside from polite 
greetings. 7 The defense also released statements from other 
witnesses who told how the police, the detectives, and/or 
Solicitor Dorsey had manufactured the "evidence" they had 
given in court. 8 

Epps, McKnight, and others whom the Atlanta police 
could locate and reinterview repudiated their retractions. 
Fourteen-year-old George Epps, an inmate of the state re- 
formatory, where he had been sent in December, 191 3, for 
stealing, reverted to his original story within a few days after 
the defense had released his recantation. No explanation was 
given for the sudden change. A relatively unimportant wit- 
ness, who repudiated statements he had given at the trial, was 
arrested and brought to Solicitor Dorsey's office for question- 
ing. The man spent the night in jail, and the next day signed 
his name to a new affidavit stating that agents for the defense 
had bribed him to swear falsely, but now, he averred, the 
statements that he had made at the trial were true. 9 

Albert McKnight's retraction came in a peculiar fashion. 
He was found unconscious one night near the railroad tracks 
outside Atlanta. Taken to the hospital, he hovered between 
life and death but finally recovered. At that point he allegedly 
left the hospital to seek refuge in the police station where he 
retracted the statement he had given the defense. McKnight 
now claimed that Frank's lawyers had hounded him and that 
he had asked the police to protect him by putting him in jail! 
The newspapers reported that McKnight wished to remain in 
prison indefinitely, and the police obliged by keeping him in 
solitary confinement without visitors. 10 

Frank's partisans attempted to explain the peculiar behavior 



Tom Watson and William J. Burns 87 

of the affidavit-switchers. G P. Connolly, author of The 
Truth about the Frank Case, later suggested that Solicitor 
Dorsey might have reminded each witness that a Georgia 
statute provided the death penalty for swearing falsely in a 
capital case. Another explanation came from a woman who 
had repudiated her first affidavit but then reverted to the 
original statement. She confided to friends that one conduct- 
ing a business in Atlanta "could not afford to antagonize the 
police." " 



Frank's attorneys did not rely solely upon repudiated 
testimony in their extraordinary motion 12 for a new trial. 
Henry Alexander, one of the numerous lawyers working for 
the defense, made a careful study of the "murder notes" 
found near Mary Phagan's body and reached some startling 
conclusions. His examination showed that these notes were 
written on the carbons of old order pads which had been used 
previously by a former factory official. The dateline read 
"190 — ," indicating that the forms must have been at least four 
years old. The official who signed the orders left the employ 
of the factory in 191 2, and all his office records, including 
pads, had been removed to the basement, near where Mary 
Phagan's body had been found. Alexander concluded that this 
proved that Conley could not have written the notes on a pad 
which Frank had given him in his office. 13 

Alexander then proceeded to examine the wording of the 
notes. In the second one the author had used the phrase, "play 
like the night witch did it." Most people automatically as- 
sumed that the expression referred to the night watchman. 
But Alexander pointed out that although the author of the 
murder notes had made many spelling errors, he had not made 
any in pronunciation. Therefore it seemed extremely unlikely 
that "night witch" would have been written if "night watch" 
or "night watchman" had been the author's intention. "Night 






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Henry Alexander, one of Leo Frank's attorneys, analyzed the "murder 
notes" in 1914 and made significant points about the paper used, the 
dateline, and the wording. 



90 Tom Watson and William J. Burns 

witch," Alexander wrote, meant "night witch!" He then ex- 
plained that the term "night witch" referred to a peculiar 
Negro superstition. 14 A Baptist minister later added that 
when he had asked his Negro servant the meaning of "night 
witch" she had replied, "When the children cry out in their 
sleep at night, it means that the night witches are riding them, 
and if you don't go and wake them up, they will be found 
next morning strangled to death, with a cord around their 
necks." 1G Those who believed Frank innocent agreed that it 
was probable that only a Southern Negro would have known 
about, and used, such an expression; therefore Frank could 
not have dictated the murder notes. 16 



In the preparation of both the extraordinary motion and 
the brief for the first appeal the previous fall, Frank's counsel 
sought and received the aid of Louis Marshall, who was not 
only President of the American Jewish Committee but also a 
renowned constitutional lawyer. Marshall advised that, in 
addition to the appeal for a new trial based upon new evi- 
dence, another motion be introduced asking for Frank's free- 
dom on the ground that his enforced absence from the court- 
room at the rendition of the jury's verdict constituted depri- 
vation of due process of law; hence the Georgia authorities 
were holding Frank in custody illegally. 

The Atlanta attorneys at first hesitated to include this new 
point involving a federal question because they feared it 
would mitigate the effect of their extraordinary motion. 
Marshall vigorously dissented from their view. He argued 
that if the attorneys procrastinated until the extraordinary 
motion had been disposed of before introducing the federal 
question they would find both the court and the public 
prejudiced against them "on the theory that [they] are ap- 
parently delaying proceedings by making one application 
after another." If both were made together, Marshall argued, 



Tom Watson and William J. Burns 91 

then Frank's position would be strengthened "because a court 
which might hesitate as to the granting of a new trial on the 
ground of newly discovered evidence, might be induced to 
take a more favorable view of the proposition because of the 
fact that there is a serious question as to the regularity of the 
trial." "At all events," he added in his letter to Leonard Haas, 
brother and associate of Herbert Haas, "if the case should go 
to the Supreme Court of the United States on the question 
which I have discussed, it might be very useful to have in the 
record which goes to that court the testimony given on the 
extraordinary motion for a new trial, because it would im- 
press the court that there has been an injustice done in this 



case." 17 



The Atlanta attorneys followed Marshall's advice and hired 
additional counsel to argue this federal question in the 
Georgia courts. At the time that the Solicitor had agreed to 
let Frank remain away from the courtroom, when the jury 
rendered its verdict, Luther Rosser and Reuben Arnold had 
promised Hugh Dorsey that they would not use their client's 
absence during part of the judicial proceedings as a basis for 
future appeals. Therefore Rosser and Arnold felt obliged to 
honor their pledge and different attorneys had to be engaged 
to argue this federal point in court. 18 

In addition to legal advice, the President of the American 
Jewish Committee used his influence in an attempt to change 
Southern attitudes. He induced Adolph Ochs, publisher of 
The New York Times, and also a member of the American 
Jewish Committee, to employ his newspaper as a weapon in 
the fight to exonerate Frank. The Times thereupon embarked 
on a protracted campaign to obtain another trial. Marshall 
cautioned Ochs that his newspaper must print nothing 
"which would arouse the sensitiveness of the southern people 
and engender the feeling that the north is criticizing the 
courts and the people of Georgia." The American Jewish 
Committee's President also "strongly urged that there should 
be no suggestion that the Frank case involves any element of 



92 Tom Watson and William J. Burns 

anti-Semitism." 19 The Times' s articles followed Marshall's 
suggestions and tried to avoid offending Southern, especially 
Georgian, sensitivities. The campaign failed, however, be- 
cause many Georgians interpreted every item favorable to 
Frank as a hostile act. In retrospect it seems that the attempt 
was doomed from the start. The Southerners who feared and 
resented aliens could not have been expected to heed the pleas 
of Northern, urban, Jewish-owned newspapers. 20 

In addition to Louis Marshall and other members of the 
American Jewish Committee, Albert D. Lasker, the Jewish 
advertising genius from Chicago, contributed his services. 
Lasker, too, had heard of Frank's plight and, according to his 
biographer, John Gunther, "Every instinct he had for justice 
and fair play, for racial tolerance, for dignity in the courts 
and good citizenship, was aroused." He went to Atlanta, 
interviewed Frank and his friends, and returned to Chicago 
determined to aid the cause. Since large sums of money were 
necessary to wage the legal battle, Lasker solicited wealthy 
friends for contributions to the "Frank Fund." It is not clear 
just how much money he raised at that time, but Frank 
personally acknowledged Lasker's "kindness and interest in 
my case." 21 

More important than Lasker's money was the time he de- 
voted. For a man of his position to have written very large 
checks may not have been a great sacrifice, but to have ne- 
glected all other business activities for more than a year, as 
Lasker did, indicated what a great injustice he saw in the 
Frank case. Lasker made numerous trips to Atlanta, where he 
directed detectives and investigators while giving advice to 
Frank's attorneys. He also encouraged newspapers through- 
out the country to present Frank's case in a favorable light. 
He believed that as long as there was no obvious connection 
between the Jews and the press "their work can do no harm, 
but only good." 22 

Louis Marshall also sought "through various channels" to 
induce prominent individuals, especially Southerners, to take 



Tom Watson and William J. Burns 93 

up the cause. To a friend in Baltimore, who asked what he 
could do to aid Frank, Marshall wrote: "The greatest aid that 
you and your friends in Baltimore can give to this cause would 
be to induce some of the leading newspapers in Baltimore, 
Richmond, Savannah, and other Southern points which you 
reach, to write editorials similar to that which recently ap- 
peared in The Atlanta Journal, and to reproduce the articles 
which have appeared from day to day in The New York 
Times and The Washington Post" The friend obviously 
responded to the advice, for within a few weeks he answered: 
"After receiving your letter, I interested all of the Baltimore 
papers in this matter, editorially as well as otherwise." ^ 

Men like Lasker and Marshall, concerned about the mis- 
carriage of justice, communicated their feelings to publica- 
tions throughout the nation, and induced them to publicize 
Leo Frank's situation in the spring of 19 14. A Boston news- 
paperman wrote of the "vigorous and well supported move- 
ment ... to free Frank," and papers as far away as North 
Dakota and Utah discussed Georgia justice. In Bismarck, 
North Dakota, an editorialist commented: "We would have 
sat on that jury until this great globe hangs motionless in 
space and the rotting dead arise in their cerements, before we 
would condemn any man to death on the evidence which 
convicted Frank." The Baltimore Sun headed an appeal, "Jus- 
tice Demands a New Trial for Frank," and articles urging a 
new trial appeared in Little Rock's Arkansas Gazette, Rich- 
mond's Tivies-Dispatch, and The Mobile Tribune. 24 

Even Georgia newspapers responded. The Macon News 
wrote that Frank's execution "under the evidence offered 
against him would be practically without a parallel in the an- 
nals of Georgia jurisprudence." And the Constitution, per- 
haps afraid to express any sentimental feelings toward Frank, 
suddenly decided to discuss a controversial conviction which 
had occurred in New York. In this case the Constitution ad- 
vocated a new trial for the defendant. One could not, how- 
ever, be oblivious to the obvious parallel in Georgia: 



94 Tom Watson and William J. Burns 

if the atmosphere of a trial or its controlling circumstances are 
such as to produce bias or prejudice, the accused shall have the 
benefit of the doubt. It is, or should be, axiomatic and impelling, 
that at every turn, under every condition, an environment of 
perfect fairness surround and characterize the trial. 

Justice does not contemplate passion. 

Justice does not comprehend obscure evidence, or evidence 
from dubious sources, especially where that evidence shall be 
substantiated by indirect circumstances only. 25 

The most dramatic appeal for Frank came from the Jour- 
nal. The editors, in a scathing attack on Georgia justice, de- 
manded that the prisoner be given another opportunity to 
clear himself. To hang Frank on the basis of the jury's verdict 
would constitute "judicial murder." The Journal recalled the 
circumstances surrounding the trial: 

The very atmosphere of the courtroom was charged with an 
electric current of indignation which flashed and scintillated be- 
fore the very eyes of the jury. The courtroom and streets were 
filled with an angry, determined crowd, ready to seize the de- 
fendant if the jury had found him not guilty. Cheers for the 
prosecuting counsel were irrepressible in the courtroom through- 
out the trial and on the streets unseemly demonstrations in con- 
demnation of Frank were heard by the judge and jury. The judge 
was powerless to prevent these outbursts in the courtroom and 
the police were unable to control the crowd outside. 

... it was known that a verdict of acquittal would cause a riot 
such as would shock the country and cause Atlanta's streets to 
run with innocent blood. 26 

The strong editorial evoked a mixed reaction. Two small- 
town Georgian newspapers, the Greensboro Her aid- Journal 
and the Dalton Citizen, applauded the Atlanta paper's posi- 
tion. 27 The Journal also received a number of congratulatory 
letters praising the editors for their "courageous" stand. One 
letter, written by the court stenographer who had transcribed 
testimony at Frank's trial, contained the statement that "every 
lawyer I have talked to says that the Frank trial was simply a 



Tom Watson and William J. Burns 95 

farce." But some people accused the Journal of having been 
"bought with Jew money," and the paper suffered a loss in 
circulation. Another year would pass before the journal 
spoke out again for Leo Frank. 28 



The prodigious efforts made to save Leo Frank from death 
offended a great many Georgians. Outside influence and alien 
money outraged state officials and citizens alike. Many 
yearned for a native voice to rebut the national attack. In 
Tom Watson they found their spokesman. 

Tom Watson had an enormous following in Georgia. From 
the Populist era until his death in 1921, Watson remained one 
of Georgia's idols. Early in his career he had fought for the 
yeoman farmer — both black and white — who had been op- 
pressed by tyrannical industrialists and a compliant govern- 
ment. Although elected to Congress on the Democratic ticket 
in 1890, by 1892 he had renounced the party and had pro- 
claimed himself a Populist. The Democratic Party in Georgia 
retaliated by manipulating the Congressional elections of 1892 
and 1 894 in such fashion as to rob Watson of reelection. The 
basest methods were used: bribery, ballot-box stuffing, and 
repeating voters. Negroes were coaxed and intimidated, by 
Democrats in control, to vote against Watson, who had 
publicly defended their political rights and who had also de- 
nounced lynchings. In 1896 the Populist Party forced Wil- 
liam Jennings Bryan to accept a Populist vice-presidential 
nominee in return for endorsing his presidential aspirations. 
To run with Bryan, the Populists selected Tom Watson. 
With defeat in 1 896, Watson practically retired from politics 
and concentrated on his law practice. At the same time he 
busied himself with the writing of history. Eight years later 
he reemerged as the presidential nominee of an almost defunct 
Populist Party. 

Thereafter one noticed a great change in the old Populist. 



96 Tom Watson and William J. Burns 

He had become a self-conscious defender of Southern mores 
and the Lost Cause. His former understanding of, and sym- 
pathy with, Negroes changed to a more orthodox Southern 
outlook. He began to refer to the "bugaboo of negro domina- 
tion" in Georgia politics. Furthermore, in 1906, Watson 
completely abandoned the Jeffersonian ideals of equalitarian- 
ism and humanitarianism which he had championed only a 
decade earlier. In 19 10 he formally returned to the Demo- 
cratic Party, and two years later his arrival at the Democratic 
state convention "suggested the return of some Roman con- 
queror." Police officers had to force a path for him, and his 
appearance on the floor of the convention resulted in "an out- 
burst resembling pandemonium." 29 

Tom Watson thrived upon the ignorance and prejudices of 
rural Georgians. His weekly newspaper, The Jeffersonian, 
and his monthly, Watson's Magazine^ circulated throughout 
the state and provided many Georgians their only contact 
with the outside world. Popular among illiterates, who lis- 
tened to others read what Watson had written, and "crack- 
ers," Watson inspired "an almost fanatical following, many 
who accepted without question anything he told them." In 
1 89 1 a national periodical had described these Georgia 
"crackers" as people "borned in the country" who seldom, if 
ever, visited a neighboring town. They were frequently sus- 
picious of strangers, and one Southerner had written that they 
imagined every stranger a "Yankee." It was primarily these 
people that Tom Watson stirred with his diatribes against the 
financial manipulators of the North, whom he believed had 
been keeping the South in economic bondage. To cater to his 
followers' need for vicarious excitement, and perhaps to 
provide himself with a satisfactory answer for why the world 
was "plunging hellward," Watson broadened his attack to 
include Catholics, the Pope, and finally Leo Frank, who 
turned into the greatest sales bonanza in The J effer soman's 
history. 30 

C. Vann Woodward has observed that Tom Watson found 



Tom Watson and William J. Burns 97 

his greatest satisfactions "out among the people preaching a 
crusade." 31 This was true in his Populist days and in his later 
years as well. In 19 14 Watson embarked upon one of his most 
reckless attacks. Ironically, the "sage of Hickory Hill" aimed 
his thrust at another target, and touched upon what would 
eventually emerge as his real quarry in an oblique fashion. 

Hoke Smith, Georgia's senior United States Senator in 
19 14, had once owned The Atlanta Journal. Although he had 
relinquished controlling interest in the paper years before, 
everyone recognized the Journal as Smith's political organ. 32 
The Senator stood for reelection in 19 14, and although he and 
Watson had at one time been allied politically, a breach had 
developed between the two six years earlier. The old Populist 
leader had his own candidate for Smith's seat, and when the 
Journal demanded a new trial for Leo Frank, Watson mis- 
interpreted the plea as an attempt to drag the Frank case into 
politics. 33 Enraged by the editorial, Watson lashed back 
angrily. 

He entitled his first salvo "The Frank Case: When and 
Where Shall Rich Criminals Be Tried?" and devoted most of 
this attack to the "personal organ" of Senator Smith, which, 
according to The J effer soman's editor, was attempting "to 
bring the courts into disrepute, drag down the judges to the 
level of criminals, and destroy the confidence of the people in 
the orderly process of the law." Not until midway in the 
article, and on an inside page, did Watson switch his fire to 
Frank, and then he concluded "by a process of elimination" 
that either Frank or Conley, or both, had murdered Mary 
Phagan. Watson also asked two questions which plagued 
many Georgians: "Does a Jew expect extraordinary favors 
and immunities because of his race?" and "Who is paying for 
all this?" 34 

Although Watson aimed his assault at Hoke Smith and 
The Atlanta Journal, there were indications that readers 
responded more positively to his words against Frank. Wat- 
son, therefore, concentrated future articles on Frank. In April 



98 Tom Watson and William J. Burns 

he started attacking the Jew more vehemently, without mak- 
ing any connection with Smith or the Journal. It was also in 
April that Watson began printing letters which commented 
upon his outburst against Frank. "Nothing you have written 
in recent years is being so widely read," wrote one admirer. 35 
As the weeks passed, The Jeffersonian devoted more and 
more space to reader reactions on Leo Frank, and all the 
letters published praised Watson's stand. In May a correspon- 
dent confessed, "The manner in which you are handling the 
Frank case has opened my eyes." And the following week 
another thanked the editor "from the depths of my soul for 
the great service you are rendering. ... I believe you are 
making more friends by your editorials on the Frank case 
than you ever did. The name Tom Watson is heard more 
during a conversation than it ever was." 36 

The popular response stimulated Watson. His polemics 
were an ingenious weaving of fact and fantasy. 37 The former 
Populist leader seized upon the weakness in the defense pre- 
sentation and skillfully attacked Luther Rosser, who, Watson 
claimed, "strengthened the State's case enormously when he 
made his ludicrous failure, cross-examining that darkey" If 
the "mob" influenced the trial, Watson asked, why had not a 
change of venue been asked for? Because of Watson's well- 
known legal talents, his remark that "No case can come under 
'mob' influence, unless the defendant and his lawyers are en- 
tirely negligent," stung the defense while rendering Frank's 
attorneys helpless to retort. 38 

Watson cannily played upon the hatreds, fears, and preju- 
dices of his readers. He wrote of the "little factory girl who 
held to her innocence," and further endeared Mary Phagan to 
his readers by characterizing her as "a daughter of the people, 
of the common clay, of the blouse and the overall, of those 
who eat bread in the sweat of the face, and who, in so many 
instances are the chattel slaves of a sordid Commercialism that 
has no milk of human kindness in its heart of stone!" 39 

Watson always stressed simple themes so that his readers 



Tom Watson and William J. Burns 99 

would quickly see right from wrong. "We cannot have . . . 
one law for the Jew, and another for the Gentile," he com- 
mented. On another occasion he concluded, "It is a bad state 
of affairs when the idea gets abroad that the law is too weak 
to punish a man who has plenty of money." With magnificent 
simplicity he summed up the crux of his argument, "Leo 
Frank is guilty of the foulest crime ever committed on a 
Georgia girl, and he should not be allowed to escape." 40 A 
contemporary publication in Georgia evaluated Watson's 
contributions so highly that The Jeffersonian reprinted the 
entire eulogy. "Tom Watson," The Madisoniaris editorial 
began, "has added new laurels and new lustre to his fame as a 
writer ... by his articles on the famous Frank case. His 
productions touching this case ... are modern epics. . . . 
They have added a hundred thousand new friends to Mr. 
Watson's long list, and given The Jeffersonian 2 standing and 
a circulation in Atlanta and in Georgia never before enjoyed 
by any Watson publication." 41 

Tom Watson reinforced accepted beliefs. Emotionally 
Georgians "knew" that Leo Frank murdered their little girl. 
Yet they wanted reassurance by hearing a prominent and 
articulate spokesman reiterate and confirm their "knowl- 
edge." Watson supplied this need. The people had formed 
their opinions a year earlier. They probably forgot the 
specific details which led them to their conclusion. Yet they 
knew in their hearts that Leo Frank had murdered Mary 
Phagan. Not only did the courts of Georgia agree with them 
but Tom Watson, one of the most popular Georgians of his 
era, confirmed their feelings. For this the people of Georgia 
lionized the old Populist. 

5 

The Frank camp unwittingly provided material for Wat- 
son's gibes. In February, 19 14, immediately after the Georgia 
Supreme Court rejected the bid for a new trial, Frank's 



ioo Tom Watson and William J. Burns 

counsel announced the employment of William J. Burns to 
help prove Frank innocent. 42 The appointment turned out to 
be a colossal blunder. 43 In his first public statement Burns 
offended the people by asserting his expectation of finding a 
solution to a crime Atlantans considered already solved. 
"What are believed to be mysteries," he declared, "are in- 
variably solvable if common sense is applied." For three 
months the famous detective exuded confidence and made 
public statements which could not be justified in terms of his 
discoveries. "I am utterly confident of success," he repeated 
to newspaper reporters time after time. "The trail is very 
plain," he revealed, but declined to elaborate. After six weeks 
of investigation Burns announced: 

I know who is the murderer of Mary Phagan. In time I will let 
the public know, and I will show conclusive proof. There will 
not be a single ground for the public to contradict me. . . . The 
Phagan mystery is no longer a mystery. We have cleared it. I was 
confident from the outset that we would have success. It was no 
difficult task and our work was simple — merely the following of 
the criminal trend of mind which left so many manifestations in 
the Phagan tragedy. 44 

Burns's complete disdain for the public and for police 
officials multiplied Frank's enemies in Georgia. If Burns knew 
Mary Phagan's slayer, he should have revealed this informa- 
tion to the proper authorities. If his evidence was so conclu- 
sive, he should not have delayed publicizing his discoveries. 
His conceited assertions led Northerners to assume that he 
would "produce a confession from the real murderer, or at 
least direct evidence. Failing to do that," Albert Lasker con- 
fided to Herbert Haas, "the people up here will be very dis- 
appointed, and, to be very frank with you, I fear if he does 
not do something like that, it will hurt us and may do the case 
more harm than if he had not entered it at all." 45 

The pent-up indignation Georgians felt toward Frank and 
Burns manifested itself, on May i, 19 14, in Marietta, Georgia, 
Mary Phagan's home town. A mob surrounded Burns after 



Tom Watson and William J. Burns 101 

his car broke down while going through the city. A crowd of 
people pursued the detective back to his hotel, where more 
than two hundred shouted out threats of "Lynch him!" 
"Shoot him!" "Mob him!" 46 The Mayor of Marietta 
pleaded with the mob to disperse, "but the crowd seemed to 
grow more demonstrative." Then a respected Judge asked the 
assemblage to let Burns get out of town. The crowd yielded, 
and before it could change its mind Burns was whisked into 
an automobile and taken back to Atlanta. As the speeding car 
left Marietta, the mob bombarded the vehicle with rotten 
eggs. 47 

The antagonism Burns created highlighted his failures, but 
he did mmage to bring a good deal of information to light, 
and under other circumstances the new material would have 
helped Frank. The detective believed that the charge of 
perversion adversely affected the defendant before and during 
his trial and that if this could be proved erroneous the public 
would be willing to reevaluate new evidence. So the detective 
offered $1,000 reward to anyone who could submit proof of 
Frank's alleged perversity. 48 "If Detective Burns wants this 
information as badly as he pretends he wants it," Chief Detec- 
tive Lanford of the Atlanta police department told reporters, 
"I'll certainly furnish him with what I believe to be convinc- 
ing proof." 49 Burns responded to Lanford's offer, and ac- 
companied by David Marx, the leading rabbi of Atlanta, and 
Henry A. Alexander, one of the lawyers working for the 
defense, went to the chief detective's office, prepared to turn 
over the reward. When they arrived Lanford refused to grant 
them access to the proof he claimed was locked in the police 
safe. He added, however, that "the state does not contend, 
and never has contended, that Frank is a pervert. The perver- 
sion charge was injected into the case by the attorneys for the 
defense, not by those for the state." 50 Lanford's remarks 
astonished his listeners. Leo Frank, after learning of the Chief 
Detective's comment, vented his wrath in a public statement: 
"Is there a man in Atlanta," he asked, "who would deny that 



10 2 Tom Watson and William J. Burns 

the charge of perversion was the chief cause of my convic- 
tion, or deny that the case, without that charge, would be an 
entirely different question?" 51 And in the North, The New 
York Times editorialized that "the present denial by the head 
of the Police Department that either it or the State ever 
charged Frank with moral perversity is incomprehensible to 
anybody who has read the report of the trial and therefore 
knows how directly contrary to recorded fact the denial is." 
Burns then increased his reward to $5,000, but there were no 
takers. 52 

The noted detective also found, although how he did so 
was never made clear, letters written from jail by Jim Conley 
to a girl friend, Annie Maud Carter. Copies of these letters 
were furnished to the newspapers, but the Constitution ex- 
plained to its readers that "their contents were so vile and 
vulgar that their publication is impossible." 53 The letters, 
according to Burns, "show beyond a peradventure of a doubt 
that Conley is an abnormal man. . . . They are full of the 
vilest, most abominable language, dealing with Conley's lust. 
His perverted passion was aroused by her [Annie Maud 
Carter] and most of the letters are full of this vile stuff." 54 
Some of Conley's expressions were indeed lewd. He also used 
the words "did" and "Negro," indicating they were part of 
his normal vocabulary. At the trial one of the explanations 
offered by Dorsey to prove that Conley did not compose the 
"murder notes" was that a Negro ordinarily uses the words 
"done" and "nigger" rather than "did" and "Negro." 55 

Conley denied authorship of the letters, 50 but Annie Maud 
Carter swore otherwise. Graphologists who examined the 
notes confirmed that the writing compared favorably with 
other material penned by Conley. Miss Carter also swore that 
Conley revealed his innermost secrets to her, including a de- 
scription of how he murdered Mary Phagan. According to 
her statement Conley allegedly beckoned to Mary Phagan 
after she left Frank's office on the fatal day. When the girl 
approached he knocked her over the head, choked her, and 



Tom Watson and William J. Burns 103 

then pushed her down a scuttle hole in the back of the build- 
ing. After following her down, he wrote the murder notes 
and left them near the body. Conley hoped suspicion would 
fall on Newt Lee, "a long tall black Negro." After writing 
the notes the sweeper broke the bolt on the back door of the 
basement and left the building. Miss Carter's narrative corro- 
borated known facts and her explanation of how the body 
reached the basement seemed plausible if the elevator had not 
been used. 57 

Surprisingly, and inexplicably, the Atlanta press made no 
comment about the letters received by Annie Maud Carter 
aside from indicating that they were vulgar. Miss Carter's 
remark that Conley had confessed his guilt to her was simply 
reported in the news columns, but provoked no editorial 
comment. 

The Solicitor and the detectives, however, were quite con- 
cerned with the letters. Annie Carter was in New Orleans 
when her affidavit was made public, but Hugh Dorsey went 
to court and demanded that she be subpoenaed for question- 
ing. The presiding judge issued the order, and Frank's at- 
torneys had her brought back to Atlanta. Dorsey immediately 
arrested Miss Carter and some days later produced a new 
affidavit from her in which she asserted that she had received 
only "two or three" letters from Conley, that none were 
vulgar, and that he had confessed no crime to her. 58 In this 
instance, at least, it seems quite clear that the authorities had 
encouraged a defense witness to deliberately tell a lie, because 
it was later shown that Conley had written the letters. It is 
impossible, at this point, to know if any others might also 
have been induced to swear falsely. The defense, however, 
believed that Dorsey and his staff had intimidated all the 
witnesses whom they could reach. 50 

Perhaps the most incriminating piece of information un- 
covered by Burns, which quickly backfired and severely 
damaged any chance Frank may have had for the new trial, 
was the evidence given by the Reverend C. B. Ragsdale, 



104 Tom Watson and William J. Burns 

pastor of an Atlanta Baptist Church. The day after the 
murder, in April, 191 3, Ragsdale allegedly overheard two 
Negroes talking. One said, "I'm in trouble. I killed a little girl 
at the factory the other day and I want you to help me." The 
other asked, "Who was there beside you?" And the first re- 
plied, "Nobody except Mr. Frank, and I'm not sure about 
him." Ragsdale repeated these words to a friend, who advised 
that he keep his own counsel. Ragsdale followed this advice. 
Somehow a Burns agent tracked the minister down and in- 
duced him to reveal what he knew. The defense presented the 
Ragsdale affidavit in court, along with one from the friend he 
had confided in who corroborated the minister's tale, as part 
of the additional evidence warranting a new trial. A few days 
later both men repudiated their statements and swore that 
they had been bribed by Burns, and others, to give false testi- 
mony. Burns denied this, but his words had no effect upon 
those whose confidence he lacked. Herbert Haas, however, 
explained the defense's position in a letter to Albert Lasker, 
"The charge of Ragsdale that he was bribed ... is unqual- 
ified falsehood." Despite Haas's conviction that Burns told the 
truth in this matter, he readily admitted, in another letter, "It 
is the belief of nearly all of our friends that Burns's connection 
with the case has done us irretrievable damage." 60 

The Burns fiasco impaired any chance Frank may have had 
for a new trial. The detective's public antics also highlighted 
the huge sums of money being spent to save the accused, a 
fact which Dorsey brought to public notice when he argued 
against a new trial. The Solicitor came to court armed with 
repudiations of affidavits made for the defense. In these state- 
ments the affiants claimed that attorneys and investigators 
working in Frank's behalf bribed them to change their tales. 
The charge of corruption by so many of the prosecution's 
original witnesses reinforced the popular impression that the 
defense spent unlimited amounts of money to free Frank. 61 

Dorsey also scored brilliantly when he examined Burns in 
the courtroom. During the course of the interrogation the 
prosecutor forced the noted sleuth to admit that he had never 



Tom Watson and William J. Burns 105 

read the testimony of the trial, only the brief prepared by the 
defense attorneys, and that his report to Frank's lawyers con- 
tained the opinion that "they didn't need any more evidence 
than was in the record." Finally Burns acknowledged that 
aside from the information that had already been produced in 
court, and the repudiated affidavits of Annie Maud Carter and 
C. B. Ragsdale, he had obtained no other evidence to incrimi- 
nate the murderer of Mary Phagan. 62 Dorsey's interrogation 
of Burns appeared to the Frank camp as the final blow. "The 
situation is worse today than it has ever been," Haas wrote 
Lasker. "It is desperate. All of us feel that the situation is 
hopeless. Unless the Supreme Court of the United States sus- 
tains the Constitutional point, Frank is a doomed man." * 

Within a few days Frank's attorneys concluded their peti- 
tion for a new trial, and without even listening to the prosecu- 
tion's summation, Judge Ben Hill denied the defense motion. 
He subsequently refused to set aside the verdict on the consti- 
tutional grounds that Frank's absence from the courtroom 
constituted denial of the federal guarantee of due process. On 
both counts Frank's attorneys indicated they would appeal. 64 



In retrospect it seems that Frank's efforts to obtain a new 
trial in the spring of 19 14 failed, in part, because too many 
people tried too hard to assist him. At the same time there 
was no clearly established leader to coordinate affairs. Louis 
Marshall had attempted to guide proceedings, but he was 
handicapped by remaining in New York City, too far from 
the hub of activity, and also by the reluctance of others work- 
ing for the defendant to follow his advice. Marshall did recog- 
nize, however, the cost to Frank of his well-meaning, but 
thoughtless, "friends." "Too many of our Jewish friends in 
Atlanta are assuming responsibility in this litigation," he pro- 
tested to the Haas brothers, "and are conferring with Tom, 
Dick and Harry with regard to it." " 5 

Marshall had also objected to the employment of William 



106 Tom Watson and William J. Burns 

J. Burns, the raising of large sums of money, and the North- 
ern newspaper barrage which succeeded in magnifying 
Georgian prejudice toward Frank. As early as March 17, 
1 9 14, he had written to a friend that "the campaign in the 
North may be overdone." Marshall also urged that Frank's 
partisans deemphasize religious prejudice. "There is too much 
of a tendency on the part of our people to attribute every- 
thing to anti-Semitism." 66 And after Burns had barely es- 
caped being lynched, Marshall candidly confessed to another 
friend that he had been opposed to hiring the detective in the 
first place. "I foresaw just what has happened — an attack 
upon him because he is a stranger and a Northerner. ... I 
have been disgusted at the farcical methods to which Burns 
has resorted. Every one of his acts has been a burlesque upon 
modern detective ideas. It is deplorable that a case so meritori- 
ous as that of Frank, should have been brought to the point of 
distraction by such ridiculous methods." 6T Finally, the Presi- 
dent of the American Jewish Committee hit upon one of 
Frank's most significant difficulties: "The lawyers in the 
case . . . have not at all times acted with good judgment." 68 
The situation that Marshall had observed so clearly was 
summarized in one sentence by his law partner, Samuel 
Untermyer: "I am afraid the whole business has been terribly 
botched but the point now is to avoid further blunders." 69 
Untermyer was undoubtedly correct. The defense attorneys 
therefore began preparing new briefs for an appeal to the 
Georgia Supreme Court. But this seemed only a formality. 
Eventually they expected to take their case into the federal 
courts, and ultimately to the United States Supreme Court, 
where they hoped that justice might be obtained. 



CHAPTER VI 



Wisdom without Justice 



the summer of 1914 marked a calm interlude after 
the frenzied activity in Frank's behalf during the previous 
spring. American newspapers ceased condemning Georgia 
justice, Tom Watson vented his frustrations upon other sub- 
jects, no witnesses came forth with crucial evidence or repudi- 
ated previous testimony, the public focused its attention on 
the perilous European situation, and the defense counsel 
quietly appealed to the Georgia Supreme Court. 

The repetitive arguments before Georgia's highest court 
lacked drama and required merely a few columns of Atlanta 
newsprint. The defense based its appeal upon new evidence 
and Frank's alleged denial of life and liberty without due 
process of law. The Court waited until the fall before once 
more thwarting the petitioner's hope for legal vindication in 
Georgia. The Georgia Justices unanimously agreed that 
Judge Ben Hill, before whom the new evidence had originally 
been presented, had not abused his discretion in denying the 
extraordinary motion for a new trial, and the Court saw no 
reason to reverse him. 1 

Once the Georgia Supreme Court turned down Frank's 
second request for a new trial, a realignment of his legal staff 
took place. Luther Rosser and Reuben Arnold, who had 
defended Frank during the trial and had argued his appeals in 
the Supreme Court, ended their formal association as counsel. 
Thereafter, the brothers Haas, Herbert and Leonard, worked 



io8 Wisdom without Justice 

with Henry Alexander, who had been hired in 191 3, and the 
firm of Tye, Peeples, and Jordan, which had been retained in 
the spring of 19 14 to introduce the constitutional question of 
whether a trial can be considered valid if the defendant had 
been out of the courtroom during any part of the proceed- 
ings. Louis Marshall remained in New York but continued to 
supervise the work of the Atlanta attorneys. 

Marshall had originally suggested to the other attorneys 
that an attempt should be made to invalidate Frank's convic- 
tion on the technical ground that neither defendant nor 
counsel had the right to waive his constitutional privilege to 
be present in the courtroom at every stage of the proceedings. 
Henry Peeples, John Tye, the Haas brothers, and Henry 
Alexander had argued this point before Judge Ben Hill, who 
had denied their allegation in June, 1914. On appeal, the 
Georgia Supreme Court upheld Hill's decision. Five of the six 
Supreme Court justices 2 agreed that the defendant's enforced 
absence from the court was known at the time of the first 
appeal and the alleged lack of due process should have been 
brought up at that time. If it had been, the Justices intimated, 
then redress might have been granted. 

It would be trifling with the court [however] to allow one who 
had been convicted of crime, and who had made a motion for a 
new trial on over 100 grounds, including the statement that his 
counsel had waived his presence at the reception of the verdict, 
and have the motion heard by both the superior and the Supreme 
Courts, and, after a denial of both courts of the motion, to now 
come in and by way of a motion to set aside the verdict include 
matters which were or ought to have been included in the motion 
for a new trial. 3 

Again frustrated, but not unexpectedly, Louis Marshall, 
commenting on the latest failure, wrote Leonard Haas, "I am 
not surprised [at the Georgia Supreme Court's decision], and 
only hope that the opinion will be on such grounds as will not 
increase the difficulties of procuring a review of the funda- 
mental question by the Supreme Court of the United States." 4 



Wisdom without Justice 109 

But, alas, the Georgia Supreme Court refused to grant the re- 
quest of Frank's attorneys for a writ of error 5 on the 
grounds that the case presented only a procedural question 
and no constitutional point existed. 6 

The adverse judgment did not stop Frank's attorneys. 
Leonard Haas, Henry Peeples, Henry Alexander, and Louis 
Marshall appealed to the United States Supreme Court Justice 
Joseph R. Lamar for the writ of error. Lamar gave them "a 
most patient and courteous hearing," 7 but denied their appli- 
cation on the grounds that the point raised involved only a 
question of state procedure which the United States Supreme 
Court would not review. 8 

Frank's counsel, out of courtesy and custom, had applied 
first to Justice Lamar for the writ of error because Georgia 
was included in his circuit. After he had refused them, they 
let it be known that they would appeal, if necessary, to each 
of the other Justices, in turn. 9 The attorneys next approached 
Justice Oliver Wendell Holmes. Holmes, too, denied the wit 
because he also felt bound by the Georgia Supreme Court's 
decision that the motion to set aside the verdict on constitu- 
tional grounds had come too late, and was therefore a pro- 
cedural question. Justice Holmes, however, doubted whether 
on the basis of the evidence submitted to him, Leo Frank had 
received due process of law. He based his conclusion upon the 
fact that the trial took place "in the presence of a hostile 
demonstration and seemingly dangerous crowd, thought by 
the presiding judge to be ready for violence unless a verdict 
of guilty was rendered." 10 

Denials of their appeal by Justices Lamar and Holmes did 
not daunt the determined counsel. They immediately peti- 
tioned to be heard before the entire Supreme Court and their 
request was granted. But their argument had no greater effect 
on the judges collectively than it had upon the two who re- 
jected the earlier petitions. It took only one week for the 
United States Supreme Court to refuse Leo Frank a writ of 
error. No written opinion accompanied the denial. 11 



no Wisdom without Justice 

Holmes's explanation and the Supreme Court's refusal to 
issue the writ of error spawned newspaper criticism 
throughout the nation. Albany's [New York] Knickerbocker 
Press asked, "Is it not an amazing commentary upon our 
judicial system that an associate Justice of the United States 
Supreme Court 'seriously doubts if Frank has had due process 
of law,' and yet there is no means at hand by which 'due 
process' may be had?" 12 The Indianapolis News questioned, 
"How can the lay mind be expected to see justice in a ruling 
of that sort? It may be entirely legal, but it hardly seems 
sensible." 13 

Spurred on by editorial support and hopeful that even the 
United States Supreme Court might yield to the outcry, 
Frank's attorneys reinstituted proceedings for a hearing in the 
nation's highest tribunal with an appeal for a writ of habeas 
corpus. 14 The new plea rested upon Justice Holmes's ex- 
pressed doubts and Louis Marshall's conviction "that the trial 
court lost jurisdiction of the case when the verdict was re- 
ceived in the absence of the prisoner. . . ." 15 The petition 
claimed that the state of Georgia illegally and unjustly held 
Frank in captivity because his conviction did not result from 
due process of law. This time, however, the basis for lack of 
due process was not that Frank involuntarily absented himself 
from the courtroom but that he did so because of the hostile 
attitude of the spectators at the trial. Hence mob influence 
constituted denial of due process. 10 

The defense attorneys asked for the writ of habeas corpus 
in the Federal District Court for North Georgia. The local 
judge denied their petition and they appealed once more to 
Justice Lamar. This time Lamar agreed that the United States 
Supreme Court should consider their petition. Justice Lamar 
now saw several legal issues which he believed the Supreme 
Court ought to rule upon, and which had not been apparent 
to him in the appeal for a writ of error. Among those issues he 
included (i) whether a defendant in a murder trial may 
legally waive his right to be present at all stages of the pro- 



Wisdom without Justice 1 1 1 

ceedings in a State Court and (2) does the failure to raise a 
material point in an appeal to a State Court prevent counsel 
from raising the question at a later date? 17 Lamar's verdict 
met with general newspaper acclaim. "Throughout the entire 
country," the Scranton (Pa.) Tribune-Republican declared 
"there was a breath of relief. . . ." 18 "Justice Lamar's de- 
cision," echoed the Portland Oregonian, "makes life and 
liberty more secure for every citizen of the United States." 19 

The opportunity to be heard by the United States Supreme 
Court gratified Frank and his supporters. They confidently 
expected success. A few days before Lamar granted the 
appeal, Marshall had written, "If we only get a chance for 
argument in open court, I feel that we should win. Our posi- 
tion is legally and morally impregnable." 20 

The final court presentation had to be prepared carefully. 
Like the writ of error, which asked to have the verdict set 
aside and make Leo Frank a free man, the writ of habeas 
corpus alleged that since Georgia held Frank illegally, he must 
be given his freedom at once. Louis Marshall prepared the 
defense brief with the realization that any court would hesi- 
tate before granting this extreme demand in light of the facts 
already known. "From a tactical standpoint," he wrote, "it 
would be far easier to succeed, if the Court were satisfied that 
a favorable decision would not finally discharge Frank." 21 In 
other words, the chance for the Supreme Court's granting the 
defense's request would be much greater if it could simply 
remand the case back to a Georgia court with instructions 
that a new trial be granted. 22 

Marshall's argument before the Supreme Court highlighted 
the irregularities of a trial dominated by hostile elements and 
culminating with the judge coercing the defendant's counsel 
to acquiesce in denying Frank the opportunity to see and face 
the jurors when they delivered their judgment. 23 Warren 
Grice, the Attorney-General of Georgia, who, along with 
Hugh Dorsey, represented the State of Georgia in the United 
States Supreme Court, rebutted Marshall's claims and partic- 



ii2 Wisdom without Justice 

ularly objected to the use of the word "coerce." "It was 
simply the case of a kind-hearted Judge," Grice explained, 
"suggesting to the counsel that their client remain absent." 24 

Two months passed before the Supreme Court, on April 
19, 191 5, rejected the defense motion by a vote of 7 to 2. 26 
Speaking for the Court, Justice Mahlon Pitney elaborated 
upon the denial. Justice Pitney explained that errors in law, 
however serious, committed by a court of proper jurisdiction 
cannot be reviewed by habeas corpus since habeas corpus 
cannot be substituted for a writ of error. Furthermore "the 
allegations of disorder were found by both of the State courts 
to be groundless except in a few particulars as to which the 
courts ruled that they were irregularities not harmful in fact 
to defendant and therefore insufficient in law to avoid the 
verdict." Frank's contention of denial of due process because 
he had not been present during the entire trial "has been set 
aside because it was waived by his failure to raise the objec- 
tion in due season when fully cognizant of the fact." The 
right of the defendant to be present at the rendition of the 
jury verdict, Pitney continued, "is but an incident of the right 
of trial by jury; and, since the State may, without infringing 
the Fourteenth Amendment, abolish trial by jury, it may limit 
the effect to be given to an error respecting one of the inci- 
dents of such trial." The Supreme Court majority also ac- 
knowledged that the Georgia courts accorded Frank "the 
fullest right and opportunity to be heard according to es- 
tablished modes of procedure. . . ." Therefore, Justice Pit- 
ney concluded, the defendant had been deprived of no right 
guaranteed by the Fourteenth Amendment or any other pro- 
vision of the United States Constitution. 26 

Justices Holmes and Charles Evans Hughes dissented. They 
dismissed Frank's absence from the courtroom as inconse- 
quential compared to the major point of whether a trial con- 
ducted in an atmosphere of overt public hostility is consonant 
with due process of law. Examining the records and com- 
menting upon Judge Roan's expressed doubt, Holmes and 



Wisdom without Justice 113 

Hughes thought "the presumption overwhelming that the 
jury responded to the passions of the mob." Therefore under 
no stretch of judicial imagination could they presume that 
Leo Frank had had a fair trial. "Mob law," they concluded, 
"does not become due process of law by securing the assent of 
a terrorized jury." 27 

Northern press commentary "was bitter against the su- 
preme court," a Missouri newspaperman wrote to Leo Frank. 28 
"The opinion of the country will be with the dissenting 
Justices," averred the San Francisco Chronicle.™ The Mus- 
kogee (Okla.) Democrat lamented, "The sad part of it all is 
that Frank has failed to get a new trial not because the higher 
court believes him to be guilty but because of technical mis- 
takes made by his lawyer." Louis Marshall wrote to a friend, 
"I fear that I shall never again be able to feel that reliance 
upon the courts in respect to the accomplishments of the ends 
of justice, that I had hitherto entertained." 30 

With the denial of the writ of habeas corpus all court ac- 
tion had been exhausted. Under the laws of Georgia only one 
course remained open — to petition the Governor via the 
Prison Commission for clemency. Frank's attorneys now set 
about to prepare the necessary petition. 



CHAPTER VII 



Commutation 



a movement to have Frank's sentence commuted 
began in the autumn of 1914, after his appeals had been 
turned down by the Georgia courts and the outlook in the 
federal courts appeared uncertain. Frank's friends hoped that 
national publicity might stimulate a ground swell of opposi- 
tion to his conviction which would persuade the Governor of 
Georgia to commute the sentence. Therefore, the fall of 19 14 
witnessed a revived interest in Frank throughout the nation. 
Part of this concern may be attributed to a "sensational" new 
development in the case, and part may be assigned to some 
prominent newspapers and national periodicals which, in- 
spired by those most concerned with the prisoner's welfare, 
decided to investigate the case and discover why Leo Frank 
had been convicted. 



The new development which stirred Atlanta and those 
working to save Frank was the announcement, made on Oc- 
tober 2, 1 9 14, by William M. Smith, lawyer for Jim Conley, 
the state's key witness at the trial, that his own client had 
murdered Mary Phagan. This incredible admission seemed 
highly unethical, but Smith maintained that since Conley had 
already been convicted for his complicity in the crime he 
could not be retried. Under the circumstances, Smith felt 



Commutation 1 1 5 

obliged to speak up to save an innocent man's life. A careful 
reading of the attorney's statement, detailing the reasons for 
his opinion, revealed speculations, intuitions, and suspicions, 
but no convincing proof. He unearthed no new facts but 
merely juxtaposed the existing ones, to reach his conclusion. 
Tom Watson accused Smith of having accepted a bribe to is- 
sue his statement and asked why the lawyer had not spoken 
up eight months earlier, in March, 19 14, when The Atlanta 
Journal published its editorial demanding a new trial for 
Frank. 1 Those who believed Frank guilty quickly accepted 
Watson's charge that Smith had been bribed; those who 
thought Frank innocent clung to Smith's words to bolster 
their thesis. 

The national press used Smith's statement to reintroduce 
Leo Frank to their readers. From June, 19 14, when a Georgia 
court had denied his appeal for a new trial, until October, 
19 14, when Smith announced his belief that Conley had killed 
Mary Phagan, Frank's name rarely appeared in print. But 
Smith's remarks gave the newspapers an occasion for review- 
ing the events in the case and stimulating further interest in 
Leo Frank. 

Since many of the newspapers outside Georgia had always 
been sympathetic to Leo Frank, it seemed natural for them to 
present his case favorably again. The first of the new articles 
appeared in November, 19 14, in the Baltimore Sun. Then — 
following in quick succession — came two articles in Collier's, 
in December, 19 14, a detailed survey in The Kansas City Star, 
on January 17, 1915, and an essay in Everybody's, in March, 
1915. 2 These stories kept material sympathetic to Frank be- 
fore the public. 

Two of the investigating journalists, C P. Connolly, who 
wrote for Collier's, and Arthur P. Train, whose article ap- 
peared in Everybody's, were lawyers. Connolly had been a 
prosecuting attorney in Butte, Montana, and Train was still 
an assistant district attorney in New York City when he 
wrote. These two men, plus the other two reporters, con- 



1 1 6 Commutation 

eluded that Frank was innocent. They saw the familiar ingre- 
dients of anti-industrialism, police incompetence, and news- 
paper sensationalism complicating the attack upon Frank. But 
each stressed Atlanta's hatred of the Jew. The Baltimore Sun's 
reporter viewed the case as "the American counterpart of the 
Dreyfus [affair]," while the essayist in Collier's wrote that the 
cry, "Innocent or Guilty, we will 'get' the d Jew! " accu- 
rately reflected Atlantan sentiment. By emphasizing anti- 
Semitism these accounts overlooked the fact that in Georgia 
many unprejudiced and impartial citizens believed Frank 
guilty. Furthermore, many Georgians resented the conclu- 
sion, reached by these outsiders, that the jury had echoed the 
demands of the clamoring crowds. 3 

These four articles spawned further commentary and dis- 
cussion in the nation's press. The editors of the Baltimore Sun 
reread their series and confessed that their faith in the jury 
system had been shaken: "Sometimes the public is almost jus- 
tified in feeling that the twelve men in the jury box deserve 
hanging even more richly than the accused." Throughout the 
country newspaper editorials were equally indignant. One 
Pittsburgh newspaper referred to the Frank case as "the most 
notorious example of the mob spirit that has invaded our 
courts for many years." Frequent comparisons were made to 
Russian justice. A mid western daily declared, for example, 
that "Russia, with all her benightedness, never produced any- 
thing more heinous than the case of Frank. . . ." 4 

But in Georgia there was no outpouring of sympathy. 
Many Georgians considered the pro-Frank editorials as the 
product of a press servile to Jewish interests. The accusations 
of race prejudice and mob passions made the people of the 
state more reluctant to reexamine their conclusions. Thomas 
Loyless, the respected editor of The Augusta Chronicle, 
doubted whether the Northern outcry would have been so 
bitter were the victim of this alleged injustice a Gentile. A 
former Governor, Joseph M. Brown, inquired indignantly, 
"Are we to understand that anybody except a Jew can be 



Commutation 1 1 7 

punished for crime?" One rural newspaper candidly asked if 
those publications which publicized Frank's situation realized 
that they were hurting the defendant with their continuing 
attacks upon Georgia justice. Whether they knew it or not, 
these attacks, continued daily, caused Southerners generally to 
believe that the publications condemning Georgia were being 
paid to express their opinions/' A despondent Louis Marshall 
wrote to Frank: "Apparently nothing that may be written 
will, under present conditions, affect public sentiment in 
Georgia." c 



Once the newspaper protests and Georgia retaliations sub- 
sided, another quiet interlude passed while Frank's attorneys 
argued before the United States Supreme Court for a writ of 
habeas corpus in February, 191 5; then they waited anxiously 
for the verdict. When the Supreme Court rejected Frank's 
plea, on April 19, 191 5, defense lawyers immediately began 
working for executive clemency. Marshall had been informed 
by Arthur Brisbane, the famous journalist in the Hearst chain, 
and others, that Frank would have a better chance to live if 
Governor Slaton, rather than his successor, received his 
appeal. Therefore Marshall requested the United States Su- 
preme Court to send its mandate to the local Georgia court 
faster than was usual. 7 Although Leo Frank preferred a com- 
plete pardon, his attorneys cautioned that, on the basis of the 
numerous adverse court decisions, he would be prudent to 
seek commutation to life imprisonment. Counsel also hoped 
that sometime in the future the climate of Georgia opinion 
might change, and Frank's innocence would be established. 8 

While the attorneys handled legal matters, further attempts 
were made to create an aura of national concern over Frank. 
Since Jewish leaders realized that everything they did on 
Frank's behalf hardened Georgian attitudes, extensive efforts 
were made to induce prominent Gentiles to join in the cru- 



u8 Commutation 

sade to save the prisoner's life. 9 The overtures succeeded. 
Many Gentiles had already heard of Frank's situation and 
doubted his culpability. They did not hesitate to express these 
opinions publicly. 

Leo Frank's predicament appealed to an amazing variety of 
people. The offices of the Georgia Governor and its Prison 
Commission were flooded with more than 100,000 letters re- 
questing commutation. Solicitations came from every state in 
the union, from Canada, and from Mexico. Included among 
these pleas were communications from the President of the 
University of Chicago; the Dean of Yale College; Charles R. 
Crane, the plumbing magnate; Judge Ben Lindsay of Colo- 
rado; and Jane Addams. Elmer Murphy, President of the 
James H. Rhodes Company, producers of industrial chemi- 
cals, sent out an appeal to every name on the mailing list of 
the company's publication, Rhodes 1 Colossus, earnestly re- 
questing that each of them intercede for Frank. The Gov- 
ernors of Arizona, Louisiana, Michigan, Mississippi, North 
Dakota, Oregon, Pennsylvania, Texas, and Virginia wrote to 
Georgia's Governor, as did United States Senators from Con- 
necticut, Idaho, Illinois, Indiana, Louisiana, Mississippi, and 
Texas, as well as scores of congressmen. The state legislatures 
of Louisiana, Michigan, Pennsylvania, Tennessee, Texas, and 
West Virginia passed resolutions urging commutation. The 
New York Times noted that the appeals by the governors and 
state legislatures "are said to be without precedent in the his- 
tory of the United States." Mass meetings were held in Bos- 
tion, Chicago, Minneapolis, and Rochester, New York. Thou- 
sands of petitions, containing more than one million signa- 
tures, poured into Georgia from every state in the union. Chi- 
cago, alone, sent more than twenty thousand petitions with 
over 500,000 names, and Cincinnati, five hundred petitions. 
The Detroit Times, the Omaha Bee, the Cincinnati Post, the 
Louisville Herald, the Boston Traveler, and several Los Ange- 
les newspapers printed coupons, asking clemency for Leo 
Frank, which readers could clip, sign, and return to the pub- 



Commutation 119 

lisher's office for shipment to Georgia. Thousands responded 
to these solicitations. Leo Frank, himself, received over 1,500 
letters daily in May, 191 5. His plight had captured the imagi- 
nation of more than a million people. 10 

Georgian reaction to this fantastic display of public sym- 
pathy varied. More than ten thousand residents of the state 
petitioned the Governor on Frank's behalf. Included in this 
group were the state's junior United States Senator, Thomas 
Hardwick, and both the son and son-in-law of the senior Sen- 
ator, Hoke Smith, a political opponent of Tom Watson. 
Many ministers, bankers, and lawyers also either wrote letters 
or signed petitions, indicating that doubt existed as to Frank's 
guilt and that, under the circumstances, the court's verdict 
should be altered. 11 A number of prominent state newspa- 
pers, including The Atlanta Journal, The Atlanta Georgian, 
The North Georgia Citizen (frequently called the Dalton 
Citizen), and the Brunswick News reached the same con- 
clusion. 12 

But a great many Georgians still wanted to see Frank hang. 
None were as articulate as Tom Watson, the state's most ve- 
hement opponent of commutation. He warned the Prison 
Commission and the Governor not to undo what the courts 
had decided; if the chief executive, who had the final author- 
ity, ignored the judicial decisions, u there will almost inevit- 
ably be the bloodiest riot ever known in the history of the 
Souths ,3 

The attacks upon Frank, the vulnerable antagonist, thrust 
Watson, who had suffered years of setbacks, to the apex 
of his popularity in Georgia. During his crusade against the 
"jewpervert" The ]effersonian\ sales more than tripled and 
profits soared. Before the Frank campaign had begun, Wat- 
son's newspaper had a circulation of about 25,000. For the 
first week of September, 191 5, this figure jumped to 87,000. 
Thomas Loyless, the editor of The Augusta Chronicle, esti- 
mated that at the height of its popularity, The Jeffersoniaris 
profits exceeded $1,000 a week. Inspired by the public's re- 



120 Commutation 

sponsiveness, Watson's vehemence grew more intense, more 
repetitive, and in the eyes of his readers, more brilliant. At the 
end of June, 191 5, a follower rhapsodized: "It did not seem 
possible to me that you could improve on what you have said 
heretofore in the Frank case, but this last article is the best 
one." 14 

Tom Watson's campaign against Frank exacerbated the bit- 
terness that Georgians harbored toward "the lustful Jew." 
The passions originally aroused by Mary Phagan's death and 
Leo Frank's trial were rekindled by essays in The Jeffersonian 
and Watson's Magazine. "RISE PEOPLE OF GEORGIA," 
the vitriolic editor demanded. He urged them to hold mass 
meetings and vent their feelings: "Let the Governor and the 
Prison Commission hear from the people." "Are you going to 
allow a clamorous minority, make a mockery of Justice, a 
farce of jury trial, a bye- word of our Laws?" Watson asked. 
"Are you going to provide encouragement and justification 
for future lynchings, by allowing Big Money to annul the 
well-weighed findings of unimpeachable jurors, whose verdict 
rests on unimpeachable testimony, and bears the approval of 
the highest court in the world?" 15 

In response to Watson's advice, protest rallies were held 
throughout the state. In Atlanta mass meetings, ostensibly to 
defend and preserve the right of trial by jury, occurred regu- 
larly in June, 19 15. One gathering, held on June 5, 191 5, on 
the grounds of the state capital, attracted thousands. The Au- 
gusta Chronicle characterized this group as a "mob." "We say 
it was 'hideous' and we call it a 'mob' because there was the 
bloodthirsty spirit of the mob in it. . . ." Crowds cheered the 
mentioning of Tom Watson and Hugh Dorsey. Leo Frank's 
name, on the other hand, evoked cries of "Hang him, hang 
him, let him hang! " The meeting ended with a hymn, and the 
group passed a resolution upholding the verdicts of the Geor- 
gia courts and demanding that equal justice be meted out to 
rich and poor alike. Subsequent gatherings attracted fewer, 



Commutation 1 2 1 

though equally zealous, individuals. Oftimes "Fiddling John" 
Carson entertained the people with verses from "The Ballad 
of Mary Phagan": 

Little Mary Phagan 
She left her home one day; 
She went to the pencil-factory 
To see the big parade. 

She left her home at eleven, 
She kissed her mother good-by; 
Not one time did the poor child think 
That she was a-going to die. 16 



3 

Within hearing distance of the public demonstrations, the 
Georgia Prison Commission met in special session on May 31, 
191 5, to consider Frank's appeal for commutation. 17 Frank's 
plea consisted primarily of information presented before other 
tribunals, a letter from a prominent graphologist who believed 
that Jim Conley had written the murder notes without the as- 
sistance of any other person, 18 and a new letter from Leonard 
Roan, the judge who had presided over Frank's trial, which 
had been sent to the defense counsel in December, 19 14. Roan 
had again expressed his uncertainty of Frank's guilt and ac- 
knowledged that perhaps he had shown "undue deference to 
the opinion of the jury." The judge agreed to repeat these 
doubts, at the proper time, to the Prison Commission and the 
Governor. Roan died before the Prison Commission met; 
hence the attorneys for Frank presented his views to the 
Commissioners. "The element of doubt, alone," one of 
Frank's lawyers insisted, "is sufficient to warrant commuta- 
tion. And the letter of the trial justice, Judge Roan, is suffi- 
cient to establish doubt enough to warrant such action." 19 

The prosecution made no counter showing to the defense 



122 Commutation 

plea. Dorsey had sent the Commission a letter expressing the 
state's opposition to any alteration of the death penalty, but 
he did not deem it necessary to appear in person. 20 

By a vote of 2 to i, the Prison Commissioners refused to 
recommend clemency. Since there had been no new evidence, 
the majority saw no reason to intervene. Furthermore, they 
noted that neither the grand jurors who indicted Frank, the 
trial jurors who heard the testimony, nor the prosecutor for 
the state had interceded in Frank's behalf. The one Prison 
Commissioner dissenting went beyond the legalities to reach 
his decision. He doubted the veracity of Jim Conley's story 
and also seemed impressed with Judge Roan's remarks. In his 
minority opinion this commissioner noted that no precedent 
existed for hanging a man where the trial judge had expressed 
doubt about the defendant's guilt. 21 

The Prison Commission's decision may have pleased a ma- 
jority of Georgians, but it shocked Thomas Loyless, editor of 
The Augusta Chronicle, and "greatly surprised . . . the best 
thought and sentiment in Georgia" 22 Loyless had been led 
to believe that the Commissioners were going to recommend 
commutation, and when they did not, he intimated that they 
might have been intimidated by public opinion. Loyless con- 
sidered this outrageous and advised, in the title of an indignant 
editorial, "Let Governor Slaton Do His Duty As He Sees It, 
Regardless!" 23 



Governor John M. Slaton had been one of the most popu- 
lar chief executives in the history of Georgia. He had entered 
office with sixteen years of legislative experience behind him, 
and the esteem of all who knew him. In 191 2 he had been 
elected Governor, "on a tidal wave of popular enthusiasm un- 
precedented in Georgia's annals." 24 During his two years in 
office Slaton fulfilled the expectations of those who had 
elected him, including Tom Watson who had supported him, 



Commutation 1 2 3 

by carrying out his duties with integrity and aplomb. In the 
primary of 19 14 he had successfully vied for the Democratic 
nomination for United States Senator. Although he won a 
plurality of the county votes, and a majority of the popular 
votes, the delegates to the state convention selected Thomas 
Hardwick for the position. 25 In the same primary Nathaniel 
Harris, a "Watson man," won the nomination for Governor 
and was subsequently elected. He was scheduled to be in- 
augurated on June 26, 191 5. 

Because his death had been set for June 22, 191 5, Leo 
Frank's plea for commutation would reach Governor Slaton's 
desk four days before Harris would take office. In June, 191 5, 
Slaton was at the peak of his popularity. Knowledgeable 
Georgians assumed that on his next try he would succeed in 
winning a seat in the United States Senate. It is true that 
Slaton did expect to crown his political achievements as a Sen- 
ator from Georgia. But he had not yet amassed enough 
strength to capture the nomination. Additional support would 
be necessary. Tom Watson, one of the state's leading politi- 
cians, indicated that he would be willing to throw his weight 
behind the Governor, if Slaton would let Frank die. 26 

Governor Slaton had an important decision to make. He 
had reason to believe that his political future would be jeop- 
ardized if he altered the court's decision. Since his term was 
about to expire, Slaton could have withdrawn gracefully 
from consideration of the case. He might have maintained 
that the pressure of last-minute business awaiting his adminis- 
tration prevented his giving the necessary deliberation to 
Frank's plea and that justice required that he defer to the next 
Governor, Nathaniel Harris, who would not be handicapped 
by lack of time and could re-examine the material judiciously 
before making a final decision. 

Slaton also could have avoided the case by claiming "per- 
sonal involvement." He had this option because he was the 
law partner of Leo Frank's attorney, Luther Rosser. In 191 3, 
before the murder of Mary Phagan, but after Slaton had been 



1 24 Commutation 

elected Governor, the law offices of Slaton and Phillips had 
joined with those of Rosser and Brandon, to form the new 
firm of Rosser, Slaton, and Phillips. Slaton had done this to in- 
sure the continuity of his practice while he was Governor. 
For purposes of prestige he permitted his partners to use his 
name while he served as the state's chief executive. The 
merger of the offices had been agreed upon two weeks before 
Mary Phagan's death, but the partnership was not actually 
consummated until July, 191 3. In the meantime Leo Frank 
had become Luther Rosser's client. After the new law part- 
ners commenced operations, Slaton had nothing to do with 
the defendant; he shared neither the burdens of the work nor 
the rewards of the fee. The Slaton-Rosser agreement received 
little publicity at the time of the merger, but in 191 5 Tom 
Watson reminded Georgians that Governor Slaton and Leo 
Frank's attorney, Luther Rosser, were partners. 27 Although 
observers could legitimately recognize the delicacy of Slaton's 
position, the Governor sensed no conflict of interest. When 
the petition for commutation reached his desk, he assumed re- 
sponsibility for the decision. 

Slaton, a man with a keen sense of justice, faced the issue 
squarely in spite of the possible political consequences. Why 
he did this is pure conjecture. Perhaps he felt that he could 
have no self-respect if he shirked this important case. On the 
other hand, he might have surmised — and I have no evidence 
to support this contention — that he would be fairer in evaluat- 
ing the evidence than his successor, Nathaniel Harris, because 
the latter was a close ally of Tom Watson's. Slaton may have 
felt — and again, this observation cannot be substantiated — 
that Harris would have been loath to antagonize both his 
patron and his constituents during his first weeks in office. 
And it may simply have been that Slaton felt it was his re- 
sponsibility to deal with the issue, and so he did. In any case, 
the decision to become the judge of Leo Frank's case proved 
the most fateful of John M. Slaton's career. 

Once having decided to consider the matter, Slaton moved 



Commutation 125 

quickly. He heard arguments from both the defense counsel 
and the prosecuting attorney, and then he visited the pencil 
factory to familiarize himself with the building, its layout, and 
the functioning of the elevator. Since Frank's attorneys and 
Hugh Dorsey had differed as to the actual place of the crime 
— the defense had claimed that Mary met her doom in the 
basement, the prosecution had insisted that death overcame 
the girl in the metal workroom opposite Frank's office on the 
second floor — Slaton tried to obtain as much information as 
possible about the pencil plant so that he might follow the 
different arguments more precisely. 

After the hearings ended Slaton secluded himself to con- 
sider the evidence. He had more material to cope with than 
anyone realized. In addition to the voluminous court hearings 
and judicial pronouncements, and the letters already dis- 
cussed in the newspapers, the Governor had received a per- 
sonal letter from Judge Roan asking him to rectify the mis- 
take the judge realized he had made by sentencing Frank to 
death. The Governor had also received a secret communica- 
tion from one of Hugh Dorsey's law partners, informing him 
that Jim Conley's lawyer had confessed to this partner that 
Jim Conley had murdered Mary Phagan. 28 Another commu- 
nique which had been received by Slaton and not published 
until 1923 came from an inmate in Atlanta's federal peniten- 
tiary. The inmate claimed to have seen Jim Conley struggling 
with Mary Phagan on the day of the murder. 20 For twelve 
days Slaton pondered the case. "I left no stone unturned in 
my investigation of the case," he confessed afterwards. "I 
went over it again and again from every point of view." 30 
While he struggled to reach a correct verdict, the Governor 
was bombarded with pleas for commutation or demands that 
the prisoner hang. More than a thousand of the petitioners 
threatened to kill Slaton, and his wife, if he let Frank live. 

Finally the day of judgment arrived. Slaton worked all day 
in his library, and well into the night. At 2 a.m., on June 21, 
he went upstairs where his wife had remained awake, awaiting 



n6 Commutation 

the verdict. "Have you reached a decision?" she asked. "Yes," 
Slaton replied, "it may mean my death or worse, but I have 
ordered the sentence commuted." It was said that Mrs. Slaton 
kissed her husband and told him: "I would rather be the 
widow of a brave and honorable man than the wife of a 
coward." 31 

Before announcing his decision Slaton made sure that Leo 
Frank was safe from the reach of Atlanta's mobs. He had se- 
cretly instructed the sheriff of Fulton County to deliver the 
prisoner to the state prison farm at Milledgeville. At about 10 
p.m., on June 20, the sheriff told Frank to gather his belong- 
ings and prepare to leave the prison. Extensive security pre- 
cautions had been taken. The telephone wires to the jail had 
been disconnected, and an automobile had been ordered to 
pull up in front of the building and keep its motor idling. Re- 
porters noticed the car and watched it expectantly. While 
they did so, the sheriff and six deputies removed Frank from 
his cell, escorted him to the basement, and then to a back alley 
exit where another car was waiting. As soon as the group en- 
tered, the vehicle sped away. While reporters zealously 
guarded the other automobile, parked in front of the prison, 
Leo Frank and his guards headed for Atlanta's main railroad 
terminal. A midnight train took them to Macon, and at about 
3 a.m. they reached their destination. The group drove the 
rest of the distance — about twenty-five miles — to the prison 
farm at Milledgeville. Orders were given to the warden to 
double the prison guard and to refuse Frank all visitors who 
had not received authorization from the Prison Commission in 
Atlanta. The following day a reporter observed, "Never in 
the history of Georgia's prison system had such a perfect sys- 
tem of secrecy been thrown around an action." 32 

With Frank safely at the state prison farm, Governor 
Slaton announced the commutation of Leo Frank's sentence 
to life imprisonment. "Feeling as I do about this case," the 
Governor added in an aside, "I would be a murderer if I al- 
lowed that man to hang." 33 A ten thousand word commen- 



Commutation 127 

tary, detailing the reasons for commutation, accompanied 
Slaton's announcement. 

The Governor's explanation showed that he had given the 
case an exhaustive review. He appeared thoroughly con- 
versant with the minutiae of the records. Slaton based his 
opinions primarily upon the inconsistencies he had discovered 
in the narrative of Jim Conley, who, he had concluded, "was 
as depraved and lecherous a negro as ever lived in Georgia." 

The first significant point Slaton elaborated upon was evi- 
dence that had been overlooked by both defense and prose- 
cution throughout the case — the human excrement found at 
the bottom of the elevator shaft in the pencil factory on Sun- 
day morning, April 27, 191 3, after the girl's body had been 
found. Conley had admitted, at the trial, that he had defecated 
there on Saturday morning. Conley had also sworn that he 
and Frank had taken Mary Phagan's body from the second 
floor metal room to the basement, via the elevator, on Satur- 
day afternoon, April 26, 191 3. But witnesses had testified, and 
the Governor himself had observed, that the elevator always 
touched the bottom of the shaft when it reached the base- 
ment. If Conley had indeed taken the corpse to the basement 
Saturday afternoon, the elevator would have mashed the ex- 
crement. But on Sunday morning, detectives, who had used 
the stairs to reach the basement, noticed the formed feces in 
the elevator shaft. Reviewing this evidence, the Governor 
concluded that the elevator had not been to the basement 
from the time Conley had defecated on Saturday morning, 
until Sunday morning. If one accepted the fact that the girl's 
body did not reach the basement via the elevator, then Con- 
ley's whole narrative fell apart, the Governor concluded. 

Other points which Governor Slaton touched upon in- 
cluded the condition of Mary Phagan's body. She had been 
dealt a severe blow in the head, which had bled freely. Yet 
blood had not been found on the lathe her head had supposed- 
ly been bashed against, or on the floor nearby, or in the eleva- 
tor, or on the steps leading downstairs. On the other hand, 



128 Commutation 

Mary Phagan's nostrils and mouth had been filled with saw- 
dust and grime, ingredients found only in the factory base- 
ment, where her body had been discovered. The Governor, 
therefore, concluded that Mary Phagan had met her doom in 
the pencil factory cellar, rather than on the second floor, thus 
indicating another significant falsehood in Conley's story. 

Slaton also commented upon the so-called murder notes. 
Their syntax and phraseology showed a marked resemblance 
to the letters Jim Conley had written to Annie Maud Carter 
in the winter of 191 3-1 9 14. They had been unearthed by Wil- 
liam J. Burns in April, 19 14. At the time of Burns's discovery 
Conley had denied authorship, but by the time the letters 
reached Governor Slaton, in June, 191 5, the Negro sweeper 
had acknowledged authorship, but still denied having included 
any of the vulgar passages. 34 The Governor observed that the 
words "like," "play," "lay," "love," and "hisself" appeared 
frequently, and sometimes in the same context, in the letters to 
Miss Carter and in both the murder notes and Conley's oral 
testimony. Slaton commented, too, upon Conley's frequent 
use of double adjectives: in the murder notes, in his oral 
testimony at the trial, and in his letters to Miss Carter. Expres- 
sions such as "a long tall negro, black," "He was a tall, slim 
build heavy man," and "a good long wide piece of cord in his 
hands" were examples the Governor selected to illustrate his 
contention. The murder notes, Slaton continued, had been 
written on the carbons of old order pads, found in the base- 
ment of the pencil factory. This strongly corroborated, the 
Governor believed, "the theory of the defense that the death 
notes were written, not in Frank's office, but in the base- 
ment. . . ." 

That the pads were found in the basement, that the murder 
notes resembled Conley's other writings and oral testimony, 
that no blood had appeared on the lathe or the floor near the 
lathe, that the elevator probably had not been used to trans- 
port the body, and finally that the hair found on the lathe, 
alleged to have been Mary Phagan's, could not be verified as 



Commutation 129 

such when examined under a microscope led Governor Slaton 
to conclude that the murder of Mary Phagan might not have 
been committed by Leo Frank. "What is the truth?" Slaton 
asked rhetorically. "We may never know." But by commut- 
ing the sentence to life imprisonment, the Governor declared 
that he was merely expressing the same doubt about Frank's 
guilt as had members of every other tribunal the case had 
come before. 35 A few days later, in a further elucidation of 
his actions, Slaton said: 

Two thousand years ago another Governor washed his hands of a 
case and turned over a Jew to a mob. For two thousand years 
that Governor's name has been accursed. If today another Jew 
were lying in his grave because I had failed to do my duty I 
would all through life find his blood on my hands and would 
consider myself an assassin through cowardice. 36 

Privately, Slaton confided to friends that he believed Frank 
innocent and would have granted a full pardon if he were not 
convinced that in a short while the truth would come out and 
then "the very men who were clamoring for Frank's life 
would be demanding a pardon for him." 37 The Governor 
knew certain "facts" about the case, which he did not reveal 
at the time, corroborating the defense's theory of the way 
Conley had murdered Mary Phagan. It is possible that he 
thought this material might convince everyone of Frank's in- 
nocence. If this were so, then Slaton erred. Eight years would 
pass before the information he had received privately would 
become public; and at that time few people besides Frank's 
staunchest partisans would care at all. 38 



Throughout the nation the press and public responded jubi- 
lantly to the commutation. In Georgia the response varied. 
Most of the major dailies, including The Atlanta Georgian 
and The Atlanta Journal™ and about half of the rural press, 
commended the Governor. They restricted their remarks, 



130 Commutation 

however, to the courage that Slaton had exhibited rather than 
the accuracy of his judgment. 40 Considering that rural 
Georgians had appeared so hostile to Frank, it seems surpris- 
ing, at first, that so many country editors applauded Slaton's 
deed. But when one recalls that more than ten thousand 
Georgians, from all over the state, had petitioned the Gover- 
nor to commute, the press reaction in the state seems less note- 
worthy. Thomas Loyless, editor of The Augusta Chronicle, 
perhaps typified those who praised the Governor. Although 
he had stated on a number of earlier occasions that Frank 
probably had murdered Mary Phagan, Loyless admitted that 
he was not absolutely sure of it. Therefore he supported an 
alteration of the death penalty to life imprisonment. A good 
many people in the state either agreed with him or subscribed 
to the point of view expressed by the Macon News: "What- 
ever citizens may think of John M. Slaton as a man, they still 
owe to him, while he is Governor, the respect and deference 
which his office inherently commands." 41 

Others in Georgia, however, reacted more negatively. L. L. 
Knight later commented that what had happened after Slaton 
commuted Frank's sentence could not be described adequate- 
ly "without the pen of Dante." 4 - Hugh Dorsey denounced 
the Governor; and throughout the state mobs demonstrated 
and burned Slaton in effigy. In Marietta the dummy bore a 
sign, "John M. Slaton, King of the Jews and Georgia's Trai- 
tor Forever." In Columbus one man allowed each of his three 
daughters to take a shot at the make-believe figure as it 
dangled in air. In Newnan Frank, too, was burned in effigy, 
and then both figures were cut down, set on fire, and dragged 
through the streets. 43 

Blinded by fury and prejudice, many Georgians turned 
upon their Jewish neighbors. In Canton citizens threatened 
"summary vengeance" upon all Jews who were not out of the 
city within twenty-four hours. And north of Atlanta the 
"Marietta Vigilance Committee" distributed the following 
handbill to Jewish merchants: 



Commutation 1 3 1 

NOTICE 

You are hereby notified to close up this business and 
quit Marietta by Saturday night, June 29, 19 15, or 
else stand the consequences. We mean to rid Marietta 
of all Jews by the above date. You can heed this 
warning or stand the punishment the committee may 
see fit to deal out to you. 

And Marietta's Gentiles received small business cards, printed 
in red ink, which read: 

(CARRY ME IN YOUR PURSE) 

STOP! and THINK! 

Before You Spend Your Money. 
Shall It Go To A Fund To 

PROTECT MURDERERS 

To Buy Governors. Stop and 
Think. Now is the time to show 
your colors, to show your true 
American Blood. — 

IS IT STREAKED? 

Can't you buy Shoes from an 

AMERICAN? 

Can't you buy the Necessities of 

Life from an AMERICAN? 

AMERICAN GENTILES, 
IT IS UP TO YOU 

This little card is only a little ant 
hill to start with. HELP it grow 
into a MOUNTAIN. 

Jewish merchants were also boycotted in other sections of the 
state. The New Orleans American predicted that these out- 
rages were only the beginnings of anti-Jewish demonstrations 
in Georgia. 44 



132 Commutation 

In his first issue after the commutation Tom Watson bel- 
lowed: "Our grand old Empire State HAS BEEN RAPED!" 
Endless streams of condemnation and denunciation of Gover- 
nor Slaton followed. "Hereafter," The Jeffersonian's editor 
continued, "let no man reproach the South with Lynch law: 
let him remember the unendurable provocation; and let him 
say whether Lynch law is not better than no law at all? And 
then, with the ferocity that few writers in Georgia could 
equal, Watson prophesied his most diabolical fantasy: 

When John M. Slaton tosses on a sleepless bed, in the years to 
come, he will see a vivid picture of that little Georgia girl, de- 
coyed to the metal room by this satyr-faced New York Jew: he 
will see her little hands put out, to keep off the lustful beast: he 
will hear her cry of sudden terror; he will see her face purpling 
as the cruel cord chokes her to death — and John M. Slaton will 
walk the floor, a wretched, conscience-smitten man, AND HE 
WILL SWEAT BLOOD! 45 

Governor Slaton might have ignored the burnings in effigy, 
and the poisoned pens, but he could not overlook the pande- 
monium which erupted in the state capital. People gathered in 
downtown Atlanta as soon as the news of the commutation 
had reached them. 46 Drugged by weeks of The Jeffer soman's 
venomous commentaries, and stirred to a "white-heat" by 
their own pent-up indignation, they chanted, "We Want 
John M. Slaton, Georgia's Traitor Governor." And they 
meant, literally, what they said. After a day of threatening, 
shouting, and jeering, crowds, "armed with shotguns, rifles, 
derringers, brass knuckles, heavy canes, even dynamite," 
surged past squadrons of city policemen and marched in the 
direction of the Governor's mansion. 

John M. Slaton lived six miles from the state capital. State 
troops had already barricaded his estate and encircled it with 
cordons of barbed wire. An entire battalion of the state militia 
stood guard with bayonets bared, for Slaton had declared mar- 
tial law within a half mile radius of his estate. When the im- 



Commutation 133 

passioned mobs arrived, they threw stones, bottles, and other 
missiles, but the Governor's home was too far from the road 
for anyone inside to have been reached. The militia dutifully 
protected the Governor's premises and eventually dispersed 
the people who had come. The next night the guardsmen cor- 
nered some seventy-five men and boys in the woods behind 
the house. They were armed with blackjacks, guns, and dyna- 
mite. All were arrested, but the Governor refused to swear 
out warrants against them. Martial law, around Slaton's prop- 
erty, however, remained in effect until he left the state a week 
later. 47 Mrs. Slaton recalled afterwards the terror that 
haunted her throughout that trying period: 

For four nights I scarcely slept at all. It was not exactly the 
anxiety of the moment that kept me awake, but the frequent calls 
of "Halt, who goes there," that kept ringing out. Every time I 
was aroused, in spite of myself. We live six miles in the country, 
and there are woods back of our house. These were full of men 
trying to get in. 48 

The demonstrations lasted for more than a week. News of 
the commutation had reached Atlantans on Monday, June 21, 
191 5. On Saturday, June 26, Slaton's successor, Nathaniel 
Harris, was inaugurated Governor of Georgia. At the in- 
augural ceremonies guards continued to protect John M. 
Slaton. After the ceremonies, as both the old and the new 
Governors descended the steps of the state capital, there was 
an immediate outburst of hisses, boos, howls, and shouts of 
"lynch him, lynch him!" Heavily guarded, Slaton made his 
way to a waiting automobile and departed the scene. A few 
days later, he left Georgia for an extended journey through- 
out the United States. After his departure, The Atlanta Con- 
stitution editorialized: "There must be no more mob violence 
in Georgia!" 40 Once again the nation's press felt impelled to 
comment upon the people of Georgia. The Madison (Wis- 
consin) Journal observed that "The public condemnation of 
Governor Slaton proves not so much that Georgia has be- 
smirched her honor as that Georgia has no honor." ™ 



1 34 Commutation 



Many Georgians were unwilling to believe that Governor 
Slaton had commuted Frank's sentence without having re- 
ceived some compensation for his deed. 61 For more than a 
generation they had been inundated with tales of wealthy 
plutocrats subverting justice. Tom Watson's columns reiter- 
ated the same point. He continually argued that money and 
influence had combined to keep a Jewish murderer alive. 

To be sure, money and influence did affect the course of 
Frank's case. It is unlikely that a man who had not received 
financial assistance could have paid the expenses entailed in 
having his situation reviewed three times by the highest court 
in the state and twice by the United States Supreme Court. 
Certainly, a poor man would have been unable to hire addi- 
tional investigators to discover new information or stimulate 
enough newspapers to publicize his alleged injustice. Espe- 
cially when the injustice was not atypical — a man condemned 
for a crime that he claimed not to have committed. It is also 
highly unlikely that men like Louis Marshall, Albert Lasker, 
Jacob Schiff, et al., would have shown as much concern if 
someone other than a Jew had been the victim of what they 
considered a gross miscarriage of justice. 

The efforts of Northerners and Jews had helped arouse na- 
tional opinion on Frank's behalf and had won for him addi- 
tional hearings. But it also weakened his case among the South- 
erners who tended to see "in every notion coming out of the 
North a menace and an abomination; to view every idea origi- 
nated by the Yankee or bearing the stamp of his acceptance as 
containing hidden within itself the old implacable will to 
coerce and destroy. . . ." 52 

Law-abiding citizens knew, however, that whether they 
approved of the Governor's decision or not, nothing could be 
done about the commutation. But others recalled the words of 
Tom Watson. He had intimated that commutation would in- 



Commutation 135 

voke the law of Judge Lynch. A rural Georgia newspaper, 
expressing the hope that people would not heed the advice of 
those who wished to take the law into their own hands, 
warned that "stranger things have happened and circum- 
stances seem to point in that direction." 53 



CHAPTER VIII 



Vigilante Justice 



less than two weeks after Slaton had commuted Leo 
Frank's sentence state newspapers prominently featured the 
somber pilgrimage of saddened Georgians to the unveiling of 
Mary Phagan's monument. The main speaker commemorated 
"this sainted little girl . . . who, true to her inherent high 
breeding and the teachings of her devoted mother, gave up 
her young life rather than surrender that Christian attribute 
— the crown, glory and honor of true womanhood into the 
threshold of which she was just entering." A group of one 
hundred and fifty men, who called themselves the Knights of 
Mary Phagan, then met secretly near her grave, and pledged 
to avenge the little girl's death. A few days afterwards rumors 
circulated that a plan had been devised to kidnap Leo Frank 
from the prison farm and lynch him. Governor Harris alerted 
the state police, and thereby thwarted, for the moment, a plot 
concocted by some of Marietta's most prominent citizens. 1 



For Leo Frank, life on the prison farm was a striking im- 
provement over his two years in the Atlanta cell, where he 
had lost sixty pounds. At Milledgeville he spent many hours 
outdoors under the warm Georgia sun, and this contributed 
to restoring his health, which had suffered in the dank city 



Vigilante Justice 137 

prison. 2 His daily chores never required more than four or 
five hours to complete, and he then had the rest of the day 
free. 

Frank enjoyed the leisure afforded him in prison, where he 
maintained a voluminous correspondence. "This is the six- 
teenth letter I wrote today," he told his wife, and three days 
later repeated, "I wrote only 18 letters yesterday. . . ." He 
wrote to his wife almost every day, and although he cau- 
tioned her that "the contents of my letters, & my life must be 
kept quiet," there were few items in his letters that would in- 
terest anyone but a devoted mate. In fact, his letters during 
the first few weeks at the prison farm resemble those from a 
child vacationing at a summer camp. Frank requested that his 
wife send or bring him handkerchiefs and pajamas, tooth 
paste, writing pads, a can opener, Beech Nut gum, a soap dish, 
fig bars ("I don't want sweet crackers, too rich") and $5 in 
cash. 3 If the letters to Mrs. Frank give little indication of a 
man under stress, other writings, to Julius Rosenwald and Su- 
preme Court Justice Oliver Wendell Holmes, reveal Frank's 
continuing faith that one day truth would triumph. He be- 
lieved that eventually "Right and Justice" would hold "com- 
plete sway" and his vindication would be universally ac- 
knowledged. 4 

This semi-idyllic life did not last long. Only four weeks 
after his arrival, a fellow convict, William Creen, crept up to 
Frank's cot, plunged a butcher knife into the sleeping figure, 
and proceeded to slash his victim's throat. 5 By the time the 
guard, and two other convicts, reached the pair, blood flowed 
freely from a seven and a half inch wound. Fortunately, two 
other prisoners were doctors, and they quickly clamped the 
gushing jugular vein and stopped the hemorrhage. Frank was 
then removed to the prison hospital, where the two convict- 
doctors, along with the prison physician, stitched the wound, 
and then secured his head in a metal surgical brace to prevent 
the stitches from falling out. Days passed, however, before 
anyone would predict whether the operation would be sue- 



138 Vigilante Justice 

cessful. The doctors feared that blood poisoning might set in, 
making death a certainty. 6 

Governor Nathaniel Harris ordered an immediate investi- 
gation of the attack, but the warden's inquiry failed to satisfy 
him. Harris then went to the prison farm to review recent 
events and personally interviewed prison officials, Leo Frank, 
and William Creen, the assailant. Creen told Harris that he 
had been called "from on high" to murder the Jew, and ex- 
plained further that he had tried to kill Frank to prevent other 
prisoners from being harmed, should an attempt be made to 
storm the prison and abduct its most notorious inmate. When 
Harris returned to Atlanta, he found petitions demanding that 
William Creen be pardoned as a reward for his noble deed. 7 

In the prison hospital Frank showed remarkable resiliency, 
calmness, and fortitude. Although doctors feared that he 
might not survive, Frank told one of them, "I am going to 
live. I must live. I must vindicate myself." When finally on 
the road to recovery, which "was little short of miraculous! " 
Frank wrote to a friend, "Certainly my escape was providen- 
tial, and the good Lord must sure have in store for me a 
brighter and happier day when that honor, justly mine now, 
will be restored to me. I have been victorious in my struggle 
with death & I await impatiently for the day of vindication 
and liberty." 8 

The attack upon Frank brought further denunciation of 
Georgia, in both the Northern and Southern press, as editorial 
writers condemned state authorities for their laxity. Frank 
would not have been attacked, newspapers argued, had he 
been properly protected. In Georgia Thomas Loyless, of The 
Augusta Chronicle, castigated the "mob spirit" which culmi- 
nated in Green's savagery. He asked: "Who can doubt the 
psychological connection between such crazy acts as that of 
William Creen and the inflammatory articles and speeches of 
such professional agitators and apostles of hate as afflict 
Georgia?" And The New Republic looked back centuries for 
a parallel to Frank's experiences: 



Vigilante Justice 139 

In ancient times when a man was treated as Leo Frank has been 
treated people felt that an obscene God was pursuing him. No 
mortal could be so relentless. No mortal could surround another 
with such ingenious cruelty. Only a conspiracy of fate could 
make horror so massive. We try nowadays to think differently, 
but in the case of Frank it is not easy. 9 



One month after the attempt on Frank's life, a band of 
twenty-five men stormed the prison farm shortly after 11 
p.m. Five went directly to the warden's house, while several 
cornered the prison superintendent; both men were hand- 
cuffed, but otherwise unharmed. There were only two guards 
on duty that night, and they were easily overpowered. (One 
of them had heard several automobiles approaching the prison 
farm and had pleaded in vain with his chief to move their fa- 
mous prisoner to a safer place.) Four of the intruders went di- 
rectly to Frank's hospital room and met with no obstacles. As 
soon as they opened his door, one of the men said, "We want 
you to come with us." Frank got out of bed and made a feeble 
attempt to dress himself, but one of the men commanded: 
"Don't bother with the clothes; come just as you are." The 
abductors then handcuffed their charge, and led him out of 
the building. Frank, stoically calm, as was his wont, looked 
neither terrified nor surprised; nor did he make any attempt 
to resist. In all, the intruders spent less than five minutes in the 
prison; when they left, no one pursued them. 10 

The men who kidnapped Leo Frank had begun to plan 
their adventure after Governor Slaton had commuted his sen- 
tence. These men represented the "best citizens" of Marietta, 
Georgia, the hometown of Mary Phagan. In fact, the so- 
called riffraff had been deliberately excluded. A clergyman, 
two former Superior Court justices, and an ex-sheriff were in- 
cluded among the planners and executioners who were later 
described, by the Dean of the Atlanta Theological Seminary, 
as "a sifted band of men, sober, intelligent, of established good 



140 Vigilante Justice 

name and character — good American citizens." The leader 
bore "as reputable [a] name as you would ever hear in a law- 
ful community. He was a man honored and respected." The 
abductors were the same men who, a month earlier, had 
postponed their plans to kidnap and lynch Frank when news 
of the conspiracy had reached Governor Harris. On August 
16, 191 5, however, they carried out their task with order, 
precision, and dispatch. 11 

The kidnapping of Leo Frank showed that careful prepara- 
tions had been made. Two scouts had been sent in advance to 
reconnoiter and cut the telephone and telegraph wires leading 
to the prison, while other men had departed, at intervals, from 
Marietta earlier that afternoon. To avoid drawing attention to 
themselves, each small group traveled a different route in the 
175-mile trip to Milledgeville. After converging at a pre- 
arranged spot, the men proceeded to the prison. To mask 
their identity, they wore goggles and kept their hats pulled 
down over their faces. After seizing Frank, they drove all 
night before finally stopping in a grove, just outside Marietta. 
The original plan had called for hanging Leo Frank near 
Mary Phagan's grave, but dawn broke earlier than antici- 
pated. The kidnappers, wishing not to be seen, selected an- 
other site for the execution. 

In the automobile that had taken Frank to his final destina- 
tion, the prisoner sat, apparently unruffled, 12 between two 
guards in the rear seat. The kidnappers tried to get their pris- 
oner to confess, but he would not do so. Some of the ab- 
ductors even offered to let him live if he would confess, but 
Frank would not yield. In fact, on the few occasions that the 
prisoner spoke, he sounded so sincere that two of his listeners 
thought that perhaps he really had not murdered Mary 
Phagan, and that he should be returned to the prison farm. 
But when all the automobiles stopped, and this suggestion was 
made, the passengers of the other cars were shocked. Then 
Frank began to talk. When he had finished, he had convinced 
others in the group of his sincerity, and all but four indicated 



Vigilante Justice 141 

their willingness to forgo the lynching. But then someone 
pointed out that it was too late to drive back to Milledgeville, 
that posses were out all over the state, and that there was no 
time left to change their plans. So the men once again 
concerned themselves with their intended task. But "at least 
one of [the] self-appointed executioners mutinied, urged that 
Frank be returned to prison, and refused to take part in the 
final scene of the drama." 13 

Those that remained finished what they had set out to do. 
Frank was escorted to a large oak tree. Along the way he 
muttered, "I think more of my wife and my mother than I do 
of my life." As members of the party professionally tied a 
Manila rope into a hangman's knot, Frank was again asked if 
he had murdered Mary Phagan; but he did not reply. The 
leader then spoke: "Mr. Frank, we are now going to do what 
the law said to do — hang you by the neck until you are dead. 
Do you want to make any statement before you die?" Frank 
said that he did not wish to say anything else, but then 
changed his mind and requested that his wedding ring, which 
he then removed from his finger, be delivered to a newspaper- 
man with the instructions that the reporter return it to his 
wife. (Frank's last wish was obeyed.) The executioners tied 
the knot around their prisoner's neck, flung the rope over a 
limb of the oak tree, placed Frank upon a table, and pro- 
ceeded, after checking to see that everything had been done 
properly, to kick the table from under the feet of the sus- 
pended figure. Without waiting to see their victim dead, the 
lynchers left. One of the members of the lynching party con- 
fided afterwards that the hangmen did not go about their 
work with "a spirit of lawlessness or vindictiveness. They felt 
it [the lynching] to be a duty to the State and a duty to the 
memory of Mary Phagan. . . ." 14 * 

• There is an ironic footnote to this story. One of the members of the 
lynching party, known as D. B. (Bunce) Napier in 191 5, but called Fred 
Lockhart nineteen years later, was himself almost lynched on April 17, 1934 
— the fiftieth anniversary of Leo Frank's birth — by a mob in Shreveport, 
Louisiana. He told reporters then that he had driven the car in which Frank 




Crowd milling about after the lynching. Frank is suspended from the 
tree. 

Courtesy of the American Jewish Archives 



Vigilante Justice 143 



3 

News of Frank's abduction had spread quickly. Those who 
had been assigned to cut the telephone wires in Milledgeville 
had missed one connection, so that within an hour after the 
kidnapping state officials knew of the affair. Governor Harris 
alerted the sheriff of every county between Milledgeville and 
Marietta to watch for a caravan of automobiles passing 
swiftly through their territories. A resident of Marietta had 
also seen the lynching party pass by and walked into town to 
announce his observation. Somehow Mariettans had no diffi- 
culty in finding the exact location of the lynching shortly 
after the executioners had completed their work. Hordes of 
people made their way to the oak tree where the lifeless fig- 
ure, with its gaping red throat wound, swayed in the wind. 
Souvenir hunters tore pieces of cloth from the sleeves of the 
nightshirt which covered the body, and snipped strands of the 
rope. 15 Others took pictures or milled about happily, as if at a 
holiday barbecue. Wild-eyed people gaped; women and chil- 
dren examined the dead man closely. One man ran up to the 
swaying corpse and shouted: "Now we've got you! You 
won't murder any more little innocent girls! We've got you 
now!! We've got you now!!!" Shouts and yells echoed in the 
wind. 

One man who wanted to mutilate and burn the body was 
stopped by the intervention of a respected Marietta judge, 
Newton Morris. Morris had rushed to the scene as soon as 
he heard of the lynching. When he arrived, he saw the half- 
had taken his final journey after being whisked away from the prison 
hospital. Lockhart said that he now understood how Frank must have felt 
that night. Lockhart explained that he had changed his name after escaping 
from a Georgia chain gang on August 19, 193 1. He had been sentenced to 
prison for criminally assaulting a young girl. (Author's Note. The Baltimore 
Morning Sun, April 20, 1934, p. i; clipping, Atlantic City Evening Union, 
April 20, 1934, located within the Alexander Brin scrapbooks. Mr. Brin per- 
mitted me to see his collection when I interviewed him on August 19, 1964 
in Boston.) 



144 Vigilante Justice 

crazed man screaming and demanding a bonfire. The Judge 
interceded and pleaded with everyone to permit Frank's re- 
mains to be sent home to his parents for a decent burial. He 
convinced the onlookers and quickly arranged for two under- 
takers to carry the corpse away. As Frank's body was being 
removed, the man who had originally wanted to burn him 
struck the body, and it fell to the ground with a thump. Then 
he "stamped upon the face, and ground his heel into the dead 
flesh, and stamped again, and again, until the crowd, stricken 
silent and motionless by the horror of the sight, could hear 
the man's heel as it made a crunching sound." "Stop him! 
Stop him!" Judge Morris implored, while signaling the un- 
dertakers to remove the dead man. They responded as or- 
dered, swiftly lifted the corpse into their wagon, and headed 
straight for Atlanta. 10 This maniacal incident, however, 
seemed to have escaped the notice of The Marietta Journal 
and Courier, which praised the onlookers for their good con- 
duct: "We are proud, indeed, to say that the body hanged for 
more than two hours amid a vast throng and no violence was 
done. Cobb county people are civilized. They are not bar- 
barians." 17 

In Atlanta thousands surrounded the undertaking establish- 
ment and threatened to force their way in. Their morbid ap- 
petites would not be satiated until they, too, could see the 
body of this devil incarnate. The police succumbed to their 
wish and permitted an orderly viewing of Frank's remains be- 
fore the undertakers shipped it to New York, for burial at 
Mt. Carmel Cemetery. Fifty policemen stood guard as more 
than 15,000 persons passed by the bier. The acting Mayor 
appeared on the scene and urged everyone "to be orderly and 
quiet, and thus protect the good name of our great city," but 
he pleaded to no avail. Boisterous crowds pressed against the 
police, and each other, in their eagerness to see the corpse. 
Men and women filed by the casket in separate lines. "Scores 
of women [passed] without so much as a look of horror on 
their faces as their eyes fell upon the dead man's body." Cam- 



Vigilante Justice 145 

eramen photographed the corpse, the crowds, the guards, the 
funeral parlor, and everything else that caught their eye. 18 

Outside the undertaking establishment souvenir hunters 
purchased pictures of Frank's body dangling from the tree, 
and hundreds bought pieces of the rope. (As late as 191 7, pic- 
tures of the lynching could still be purchased in Marietta.) 
The traffic in souvenirs alarmed city officials. Four days after 
the lynching the Atlanta City Council "unanimously passed 
an ordinance making it unlawful to sell in Atlanta a photo- 
graph of the body of a person who has been hanged ille- 
gally." 10 

Several affluent Georgians offered as much as $250 for the 
tree from which Leo Frank had been hung, but the owner re- 
fused to sell. Instead he encouraged loyal citizens of Marietta 
to guard the big oak. Townspeople made pilgrimages to the 
hallowed oak and, according to the owner, "hugged and pat- 
ted that old tree and then they stood still and looked upward 
for a long time. I think they must have been praying." Plans 
were made to build a concrete wall around the tree, calling 
forth the sardonic comment from a Wisconsin newspaper: "If 
the prison in which Frank was kept had been so surrounded, 
the tree would not need to be now imprisoned." 20 

Governor Harris expressed shock and grief at the lynching 
and ordered an investigation. Everyone knew, though, that 
the search would prove fruitless. The lynchers had carried 
out the will of the people, and the local Marietta newspaper 
praised their deed: "We regard the hanging of Leo M. Frank 
in Cobb county as an act of law abiding citizens." With pub- 
lic sentiment so favorable, an indictment was impossible. The 
Greensboro (Georgia) Herald- Journal cannily observed that 
"the lynchers could confess, publish their confession in the 
Atlanta papers, and they would never be molested." The kill- 
ers were generally known throughout Marietta — some of 
them, in fact, gave interviews to reporters; 21 but after an in- 
quest, the Coroner's jury concluded that Leo Frank died at 
the hands of persons unknown. The Pittsburgh Gazette inter- 



146 Vigilante Justice 

preted this announcement for its readers: "What the cor- 
oner's jury really meant was that Frank 'came to his death by 
hanging at the hands of persons whom the jury wishes to re- 
main unknown.' " 22 

The press of the nation denounced the state of Georgia 
while the press of Georgia — with the exception of The Jeffer- 
sonian. The Marietta Journal and Courier y two Macon papers, 
and a Baptist weekly — upbraided the lynchers. The opinion 
of the Richmond Times-Dispatch was representative of those 
horrified by the act: "[Frank's] lynching constitutes the most 
vicious blow struck at organized government in a century, 
and the South, in particular, must suffer." Even The Atlanta 
Constitution^ which had heretofore remained editorially silent 
on Leo Frank, headed its arraignment: "Georgia's Shame!" 
and began its charge: "No word in the language is too strong 
to apply to the deliberate and carefully conspired deed of the 
mob." 23 

There were, however, accolades for the lynchers. The edi- 
tor of Georgia's most prominant Baptist journal, The Chris- 
tian Index, observed that an "orderly mob" had carried out 
the judicial verdict. "He deplored the fact," however, "that 
the mob had to administer the justice which the courts should 
have administered." 24 Tom Watson, naturally, praised the 
doers and the deed. The Mayor of Atlanta announced, to a 
conference in California, that Frank suffered a "just penalty 
for an unspeakable crime." L. L. Knight, the chronicler of 
Georgia's history, wrote in 1917: "There is something inher- 
ently fine in the passionate desire of a people to keep inviolate 
the honor of womanhood and to visit swift punishment upon 
a wretch who dares to stain the purity of a child's life. . . ." 25 

Judge Newton Morris, the man who had prevented Frank's 
corpse from being burned, explained to a reporter that "the 
very best people" had permitted Frank's appeal to go through 
all of the courts, but after the judges had turned down his 
successive requests, they were "outraged" by Slaton's action. 
Many people believed that Frank's lawyer, Louis Marshall, 



Vigilante Justice 147 

had deliberately speeded the judgment of the United States 
Supreme Court back to the Georgia courts, so that his client's 
clemency petition would reach Governor Slaton and not 
Governor Harris. (It is true that Frank's lawyers had expe- 
dited the process because they wanted Slaton to act, but there 
is no evidence that they had bribed him or that they had ex- 
pected him to act favorably because Rosser was his part- 
ner. 26 ) A great many Georgians, the Judge continued, were 
aggrieved at how much money had been spent to buy the 
Northern press. While Frank's position had been clearly and 
emphatically restated in these newspapers, Judge Morris bit- 
terly observed, the Georgian side had been ignored. The 
Judge concluded: "I believe in law and order. I would not 
help lynch anybody. But I believe Frank has had his just 
deserts." 27 



CHAPTER IX 



Aftermath 



Frank's fate could, perhaps, have been forecast. Per- 
sonal responsibility for the enforcement of the law — deplored 
by many yet accepted by significant numbers — was part of 
the Southern heritage. In ante-bellum days the master had al- 
most total power over the dispensation of justice to his slaves. 
And when he dealt with equals, the Southern plantation 
dweller would sooner resort to a duel than request any third 
party — a law officer, for example — to intercede on his behalf. 
Poor whites had absorbed the mores of the upper classes, and 
the tradition of individual law enforcement has retained its 
potency well into the twentieth century. The defense of a 
woman's honor was also part of every Southerner's creed, and 
the culture dictated swift punishment to anyone who violated 
a kinswoman. In the closed Southern society, where fourth 
and fifth cousins were regarded as blood relations, whole 
communities felt responsible for their women. 

Violence had characterized the Old South to some extent, 
but it flourished even more in the New South. Gun fights, 
duels, lynchings, family feuds, and the like were part of ev- 
eryday living for many Southerners. 1 Georgians had been es- 
pecially notorious in following this infamous tradition. From 
1889 through 1928, for example, more people were lynched 
in their state than any other state in the Union. 2 Two weeks 
after Georgians had attempted to mob him, John M. Slaton 



Aftermath 149 

readily acknowledged that "there are some offenses to which 
[Southerners] take the law into their own hands." Slaton then 
elaborated: "In the South we generally punish by lynching 
for one offense" — assaulting a white woman. 3 

To those small-town Southerners who pondered the Frank 
case lynching seemed the most appropriate action. Georgia's 
major Baptist publication, The Christian Index, had observed 
as early as 1892 that the great majority of lynchings came 
about because Southerners were imbued with "a high sense of 
honor and [the] highest regard for female character." Seven 
years later it repeated: "By common consent, lynching for 
rape has been made an offense to be condoned." Tom Wat- 
son's bellowing, therefore, merely encouraged an accepted 
procedure; and the "best citizens" of Marietta did not hesitate 
to fulfill their moral obligations. 4 

But the death of Leo Frank did not dissipate the wrath of 
disgruntled Georgians. Ironically, in fact, the lynching left a 
void — the despondent and the vengeful had lost their whip- 
ping boy. In the autumn of 191 5 Colonel William J. Simmons 
stepped into this vacuum with a new answer to an insoluble 
problem: a new fraternal organization dedicated to the ever- 
lasting exaltation of Southern heroism, chivalry, and Anglo- 
Saxon splendor; an organization that would work for the re- 
vival of rural, Protestant culture; an organization which 
shunned the alien, put the Negro in his place, and elevated the 
Anglo-Saxon American to his rightfully superior niche in 
American society. This new fraternity would revive the glori- 
ous name and hallowed memory of the well-remembered par- 
agon of Southern heroism — the Knights of the Ku Klux 
Klan 5 — that was active in the Reconstruction days after the 
Civil War. 

Simmons, a professional fraternalist who belonged to six or 
seven other lodges, had, as an adolescent, envisioned the day 
when he would inaugurate a new order to memorialize the old 
Ku Klux Klan. 6 His opportunity came during the hullabaloo 
which ended with Leo Frank's hanging from a large oak tree. 



150 Aftermath 

After Frank's death, Simmons found in Georgia a receptive 
group, which had been mobilized by Tom Watson and now 
needed new direction. 7 Simmons answered the call. His new 
Ku Klux Klan opposed everything that Frank had personi- 
fied: urbanization, industrialization, and foreigners. The Klan 
staunchly defended American, small-town, Protestant values 
such as sexual morality, religious orthodoxy, and traditional 
economic individualism, and deplored all the modern innova- 
tions which had compromised the accepted virtues of South- 
ern life. 

Had it not been for Leo Frank, Simmons would probably 
have had to wait before launching his venture. But he found 
in the Knights of Mary Phagan, already organized but with 
its sense of purpose vanished, a suitable nucleus for the new 
Klan. In the autumn of 191 5 Simmons and thirty-three of the 
Knights of Mary Phagan met on a mountain top just outside 
Atlanta and brought the Klan into being with elaborate 
ritual. 8 



The Frank case revealed how weak were the safeguards of 
our judicial system against police loquacity, journalistic li- 
cense, and politically ambitious prosecutors. The police have 
often shared their findings and assumptions with newspaper- 
men whose papers reported— and sometimes distorted — the 
semi-official version of events. Sensational cases often have 
been tried in the newspapers long before they reached the 
courtroom. Under such circumstances it is often difficult for 
the most conscientious juror to attempt an impartial evalua- 
tion of the facts presented during a trial. Juries, too, have 
been notorious for their responsiveness to community senti- 
ment. 9 Certainly Leo Frank was tried before he ever appeared 
in court. 

The process of selecting American public prosecutors — not 
unique to Georgia — clearly contributed to Frank's undoing. 



Aftermath 1 5 i 

More frequently elected than appointed, the state's attorney is 
dependent upon the good will of his constituents for both his 
position and subsequent political advancement. To further 
their careers, politically ambitious prosecutors frequently seek 
popular and dramatic convictions to publicize their own tal- 
ents. In 191 3, when Hugh Dorsey prosecuted Leo Frank, he 
convinced many people that his primary concern was with his 
political reputation and not with obtaining justice. 10 

Since Frank's death the United States Supreme Court has 
revamped its standards for fair trials. Beginning in 1923, the 
Court overruled numerous criminal convictions which came 
about, in its estimate, because community sentiment had en- 
tered the jury box or because pretrial publicity precluded an 
impartial hearing. Prosecutors have also been censured for 
misconduct and states have been condemned for using per- 
jured testimony. 

The first significant change occurred in 1923, when Oliver 
Wendell Holmes, who had dissented from the majority view- 
point in Frank v. Mangum, practically restated the same opin- 
ion as spokesman for the Court. The case, Moore v. Dempsey, 
involved five Arkansas Negroes who, in the words of Justice 
Holmes, "were hurried to conviction under the pressure of a 
mob, without any regard for their rights, and without accord- 
ing to them due process of law." Such circumstances, Holmes 
concluded in a doctrine which has been accepted by the fed- 
eral courts ever since, interfere with the course of justice, de- 
part from due process of law, and hence are not coincident 
with the preservation of constitutionally guaranteed rights. 11 
Louis Marshall commented afterwards that the Supreme 
Court "adopted the principle for which I contended." 12 

Another subject on which justices of the Supreme Court 
have expressed concern has been coerced confessions. In 191 3 
an Atlanta jury relied primarily upon Jim Conley's testimony 
to convict the factory superintendent. Yet Conley had been 
questioned by the police and had given certain statements, 
without having had the benefit of counsel. Conley had also in- 



152 Aftermath 

criminated himself in affidavits which he signed after having 
undergone a series of intensive interrogations. Because Con- 
ley's charges had received extensive publicity, they provided 
another difficult hurdle which Leo Frank had to overcome 
before his trial officially began. 

In the 1930s, however, the Supreme Court began to over- 
rule convictions which had been based on what it interpreted 
as coerced confessions. In Brown v. Mississippi, a unanimous 
Court ruled that confessions obtained after the accused had 
been whipped into submission were void. 13 In the case of 
Chambers v. Florida, in 1940, Justice Hugo Black, speaking 
for another unanimous court, reinforced this judgment. Black 
declared that confessions obtained after the accused had been 
subjected to five days of questioning, without having had re- 
course to counsel, were presumed to be coerced confessions, 
hence a denial of due process of law. 14 Six years later, in Ash- 
craft v. Tennessee, the Supreme Court overruled the convic- 
tion of a man who had given a confession "after thirty-six 
hours [of] continuous grilling by investigating officers, who 
were holding him incommunicado in the county jail." 15 In 
similar cases, in 1957 and 1963, the Court continued to 
strengthen the right of a defendant against self-incrimination. 
In Fikes v. Alabama, Chief Justice Earl Warren held a confes- 
sion invalid which had been made after a prisoner had been 
kept in isolation for a week "except for sessions of question- 
ing." 16 In 1963 Justice Arthur Goldberg stated, in a signifi- 
cant ruling, that the United States Constitution favors "the 
right of the accused to be advised by his lawyer of his privi- 
lege against self-incrimination." 17 And finally, in 1966, the 
Court set new and more stringent standards for police inter- 
rogations. Under the most recent rulings, "the prosecutor 
cannot use in a trial any admissions or confessions made by 
the suspect while in custody unless it first proves that the po- 
lice complied with a detailed list of safeguards to protect the 
right against self-incrimination." These include the defen- 
dant's right to be informed that he may remain silent, that 



Aftermath 153 

anything he says may be used against him, and that he is en- 
titled to consult with an attorney before making any com- 
ment at all. 18 

There are other reasons which indicate that today's Court 
would not consider Frank's trial in accord with due process of 
law. In 195 1 a majority of the high court's justices overruled a 
conviction which had been obtained after considerable pre- 
trial publicity. In the opinion of Justices Felix Frankfurter 
and Robert Jackson, "prejudicial influences outside the court- 
room . . . were brought to bear on this jury with such force 
that the conclusion is inescapable that the defendants were 
prejudged as guilty and that the trial was but a legal gesture 
to register a verdict already dictated by the press and public 
opinion which it generated." 19 In 1963 the Supreme Court 
restated this position in the case of Rideau v. Louisiana. Jus- 
tice Potter Stewart, speaking for the majority, observed that 
after a community had been exposed to extensive publicity 
about an alleged criminal, "any subsequent court proceed- 
ings . . . could be but a hollow formality." 20 And more re- 
cently, in 1966, the Court considered the case of Dr. Samuel 
H. Sheppard, a Cleveland osteopath, who had been convicted, 
in 1954, of murdering his wife. Justice Tom Clark noted that 
the trial had been preceded by months of "virulent publicity" 
as "charges and countercharges were aired in the news media 
besides those for which Sheppard was called to trial." The Su- 
preme Court assumed that some of the inflammatory asser- 
tions "reached at least some of the jury." The trial was then 
conducted in a "carnival atmosphere." Justice Clark, speaking 
for all but one member of the Court, 21 asserted that Shep- 
pard's rights had been adversely affected by "the inherently 
prejudicial publicity which saturated the community." Justice 
Clark observed further, that every tribunal which had consid- 
ered the case, "save the court that tried it, has deplored the 
manner in which the news media inflamed and prejudiced the 
public." Newspapers had given undue emphasis to material 
which tended to incriminate Dr. Sheppard, and in one account 



1 54 Aftermath 

a detective " 'disclosed that scientific tests at the Sheppard 
home have definitely established that the killer washed off a 
trail of blood from the murder bedroom to the downstairs 
section.' " This "evidence" was never presented in court. The 
following excerpt from the Supreme Court's opinion is also 
reminiscent of the circumstances surrounding Leo Frank's 
trial in Atlanta: 

Much of the material printed or broadcast during the trial was 
never heard from the witness stand, such as the charges that 
Sheppard had purposely impeded the murder investigation and 
must be guilty since he had hired a prominent criminal lawyer; 
that Sheppard was a perjurer; that he had sexual relations with 
numerous women; that his slain wife had characterized him as a 
"Jekyll-Hyde"; that he was "a bare-faced liar" because of his 
testimony as to police treatment; and, finally, that a woman con- 
vict claimed Sheppard to be the father of her illegitimate child. 
As the trial progressed, the newspapers summarized and inter- 
preted the evidence, devoting particular attention to the material 
that incriminated Sheppard, and often drew unwarranted infer- 
ences from testimony. At one point, a front-page picture of Mrs. 
Sheppard's blood-stained pillow was published after being "doc- 
tored" to show more clearly an alleged imprint of a surgical in- 
strument. 

The trial judge also came in for censure because of his failure 
"to control disruptive influences in the courtroom." "The 
fact is," Justice Clark stated, "that bedlam reigned at the 
courthouse during the trial." The opinion concluded that be- 
cause of the enumerated violations, Dr. Sheppard had not 
been accorded all of his legal rights and hence the State of 
Ohio had incarcerated him unjustly. 22 

In our own day, the methods employed by Solicitor Dorsey 
might also be subject to judicial scrutiny. Not only did he en- 
gage in conduct unbecoming a state official, but he also sup- 
pressed evidence and misrepresented important items. In 1935 
Justice George Sutherland censured an attorney for being 
"guilty of misstating the facts in his cross-examination of wit- 



Aftermath 155 

nesses; of putting into the mouths of such witnesses things 
which they had not said; of suggesting by his questions that 
statements had been made to him personally out of court, in 
respect of which no proof was offered ... of assuming 
prejudicial facts not in evidence; of bullying and arguing with 
witnesses; and in general conducting himself in a thoroughly 
indecorous and improper manner." - 3 And eight years later, 
Chief Justice Harlan F. Stone severely criticized the closing 
remarks of a federal prosecutor which, in the opinion of a ma- 
jority of the Supreme Court, were calculated "to arouse pas- 
sions and prejudice." In fact, the Chief Justice said that the 
conduct of the prosecutor "prejudiced petitioner's right to a 
fair trial and . . . might well have placed the judgment of 
conviction in jeopardy." 24 In 1967, moreover, the Supreme 
Court upset a criminal conviction because the prosecutor had 
"deliberately misrepresented the truth." He had repeatedly re- 
ferred to a pair of men's undershorts, which "constituted a 
vital link in [the] circumstantial evidence on which de- 
fendant was convicted," as "bloody shorts" even though he 
"knew at [the] time of the trial that the shorts were stained 
with paint. . . ." "More than 30 years ago," Justice Potter 
Stewart concluded, "this Court held that the Fourteenth 
Amendment cannot tolerate a state criminal conviction ob- 
tained by the knowing use of false evidence. . . . There can 
be no retreat from that principle here." 25 

The Supreme Court has also ruled against the use of per- 
jured testimony to obtain a conviction. Although none of the 
witnesses in the Frank case was ever convicted of perjury, 
many of them changed their statements, and then reverted to 
the originals, in the spring of 191 4. Many people also thought 
that Jim Conley's testaments, each one modifying remarks 
sworn to previously, debarred him as a useful witness. It is un- 
likely that any court today would consider testimony made 
after the retraction of four successive affidavits worthy of 
consideration. In only one case, however, that of Annie Maud 
Carter, the woman who had received letters from Jim Conley, 



156 Aftermath 

was it possible to prove that an affidavit was incorrect. With 
so many state witnesses contradicting their trial testimony, 
and then reverting to their original statements, the present 
Court might consider the possibility that the state influenced 
some of them to testify falsely. In a landmark decision, in 
1935, the Supreme Court decided that if a state knowingly 
used witnesses whose testimony was falsified, the proceedings 
violated due process and hence were void. 26 This dictum was 
repeated by Justice Frankfurter in 1942, when he wrote, "If a 
state, whether by the active conduct or the connivance of the 
prosecution, obtains a conviction through the use of perjured 
testimony, it violates civilized standards for the trial of guilt 
or innocence and thereby deprives an accused of liberty with- 
out due process of law." 27 In 1957 the Court threw out a con- 
viction obtained after the prosecutor had encouraged the key 
witness to withhold vital information — which* if known, al- 
most certainly would have altered the jury's opinion — unless 
the defense attorney specifically asked for it. 28 And in the 
same vein Justice Warren, speaking for a majority in 1959, 
overruled a judgment in a criminal prosecution because the 
state's attorney promised to recommend a lighter sentence for 
a witness if he fabricated his testimony. 29 

With the Supreme Court so zealous in its defense of civil 
liberties today, it is extremely unlikely that another Frank 
case could occur. Although local communities and ambitious 
prosecutors may still wink at rigid standards of justice, the na- 
tion's highest court no longer tolerates a loose interpretation 
of the Fourteenth Amendment's directive that no state may 
"deprive any person of life, liberty, or property, without due 
process of law; nor deny to any person within its jurisdiction 
the equal protection of the laws." 

3 

To many prominent Jews, Leo Frank's trial and conviction 
seemed another instance of the anti-Semitic assaults which had 
become increasingly obvious for almost a generation. Mem- 



Aftermath 157 

bers of the American Jewish community therefore resolved to 
take remedial action. Four weeks after Frank's trial ended, the 
B'nai B'rith, a Jewish fraternal order founded in 1843, estab- 
lished its Anti-Defamation League to combat prejudice in the 
United States. Plans for the organization had been discussed 
for years, and each succeeding anti-Semitic outburst strength- 
ened the hand of the proponents of the new group. But it 
took Atlanta's condemnation of Leo Frank to give final im- 
petus to the League. In the founding statement, Adolph 
Kraus, President of the parent organization, commented 
upon the abundance of prejudice and discrimination in this 
country. "Remarkable as it is," one paragraph began, "this 
condition has gone so far as to manifest itself recently in an 
attempt to influence courts of law where a Jew happened to 
be a party to the litigation. This symptom, standing by itself, 
while contemptible, would not constitute a menace, but form- 
ing as it does but one incident in a continuing chain of occa- 
sions of discrimination, it demands organized and systematic 
effort on behalf of all right-thinking Americans to put a stop 
to this most pernicious and un-American tendency." 30 

In Georgia hostility toward Jews and disapproval of their 
intervention in the Frank case continued to echo long after 
Frank's demise. A minister noted in October, 191 5, that the 
"masses" resented the power of money which had been used 
"to protect criminals from the punishment which our laws 
provide for their deeds." 31 Less than a year after the lynch- 
ing, Senator Hoke Smith refrained from stirring up memories 
of things past by withholding his announcement, until the last 
minute, that he would vote to confirm Louis Brandeis, a Jew, 
for a position on the United States Supreme Court. 32 And in 
1925 Herbert Asbury, an Atlanta newspaperman, wrote: "If 
the Jews had been content to regard Frank as a man suspected 
of murder, entitled to a fair trial and nothing more, instead of 
as a Jew on the threshold of martyrdom, hounded by Chris- 
tians thirsting for his blood, there would have been little or no 
anti-Semitic feeling in Atlanta." 33 

Whether Asbury was correct or not, however, is less sig- 



158 Aftermath 

nificant than the continued hostility which frightened At- 
lanta's Jews and made them fearful of further repercussions. 
In 1923, at the height of the Ku Klux Klan's power, a foreign 
journalist, working for The Atlanta Constitution, became in- 
terested in Leo Frank and went back to study the records of 
the case. He came across some x-rays showing teeth inden- 
tations in Mary Phagan's left shoulder and compared them 
with x-rays of Frank's teeth; but the two sets did not corres- 
pond. On the basis of this, and other insights garnered from 
his investigation, the newspaperman wanted to write a series 
"proving" Frank's innocence. One anonymous correspondent 
sent him a printed note: "Lay off the Frank case if you want to 
keep healthy," but this did not deter him. What did thwart 
publication, however, was the effort of prominent Atlanta 
Jews, fearing repercussions, who prevailed upon the Constitu- 
tion's editor to refrain from printing the articles. 34 Even in 
1942 one of Atlanta's rabbis refused a Jewish graduate student 
permission to examine his extensive files, detailing the efforts 
which had been made to save Frank, on the grounds that any- 
thing written would only stir up trouble. 35 



The reverberations of the Frank case touched a number of 
individuals who had become connected with the affair: Jim 
Conley, John M. Slaton, Hugh Dorsey, and Tom Watson. 
Jim Conley, the Negro sweeper who proved to be the key 
witness against Frank at the trial, passed into oblivion; and 
aside from his obituary notice in 1962, appeared in the news- 
papers again only when in jail. In 19 19 he was shot in an at- 
tempt to burglarize an Atlanta drug store. For this offense he 
received a twenty-year sentence in the state penitentiary, al- 
though for the assistance allegedly given to Frank in remov- 
ing Mary Phagan's body, Conley had spent only a year on the 
chain gang. In 1941 he was among a group picked up by the 
Atlanta police for gambling; and in 1947 he was again ar- 



Aftermath 159 

rested, on a charge of drunkenness. There is no record of his 
ever having revealed anything more about his role in the 
Phagan murder case. 36 

Governor John M. Slaton remained in exile from his native 
state for a number of years. After the First World War he re- 
sumed his law practice in Atlanta but was never again elected 
to public office. In 1928, however, the Georgia Bar Associa- 
tion honored him by unanimously electing him its president. 
In 1953 Slaton granted Samuel Boorstin, a good friend and 
contemporary of Leo Frank, an interview and reminisced 
about the Frank case. Slaton recalled that Judge Roan had 
said to him that if Hugh Dorsey's predecessor in the office of 
Solicitor-General of the Atlanta circuit had been alive, Frank 
would never have been prosecuted on the evidence that the 
state had amassed. Slaton also told Boorstin that, as Gover- 
nor, he had received word, indirectly, that Jim Conley's law- 
yer believed his client guilty. Toward the end of his life John 
Slaton expressed the opinion that the passage of time had, in- 
deed, established Frank's innocence. Upon Slaton's death in 
1955, the flags of the state capitol flew at half staff, and Ralph 
McGill, of The Atlanta Constitution, eulogized: U A giant of 
his day, it was one of destiny's mocking ironies that his great 
integrity should have cost him his political life. . . ." 37 

Hugh Dorsey reaped great political rewards from prosecut- 
ing Frank and emerged as one of the influential Georgians of 
his day. 38 In 191 6 the demand for his entrance into the gu- 
bernatorial race was so great u that it swept the state like a 
prairie fire, rolling from the mountains to the sea." 39 In the 
primary that year Dorsey received more votes than the com- 
bined total of his three opponents, as he scored one of the 
greatest electoral victories in Georgia's history. Dorsey re- 
mained Governor until 192 1, when he retired to private life. 
In 1920 Tom Watson thwarted the Governor's attempt to 
obtain a seat in the United States Senate by decisively defeat- 
ing both Dorsey and Hoke Smith in a three-cornered primary 
race. Later on Dorsey served as Judge of Atlanta's City Court 



160 Aftermath 

and of the Fulton County Superior Court. He died in 1949. 40 
Tom Watson's political power increased as a result of his 
activities against Frank. In the election of 191 6, when he sup- 
ported Dorsey for chief executive, all his candidates won de- 
cisive victories. Two years later Watson once again ran for 
Congress but was narrowly defeated in a contested election 
which the state authorities refused to review. The campaign 
had been marked by overtones of loyalty and patriotism. 
Watson had denounced President Woodrow Wilson and had 
opposed American entry into the war; his paper, The Jeffer- 
sonian, had been suspended for violating the espionage act. 
Watson's opponent, Carl Vinson, had gone down the line 
with the administration. After the war Watson continued to 
strike out at Wilson, opposed American entry into the League 
of Nations, and denounced the United States Attorney- 
General, A. Mitchell Palmer, for his raids upon Socialists. 

By 1920 Georgians had become less enthusiastic about the 
administration in Washington, and Tom Watson capitalized 
upon this change in feeling. In the presidential primary, in 
which the former Populist had barely campaigned, he nosed 
out A. Mitchell Palmer, the administration's candidate, and 
Hoke Smith, and he carried a plurality of Georgia's counties. 
But Palmer had won the county unit vote and therefore went 
into the national convention with all Georgia's votes behind 
him. Watson then entered the primary race for the United 
States Senate. This time he trounced both opponents, Smith 
and Dorsey, and easily walked off with the victory. The 
Georgian did not serve long in the Senate. On September 26, 
1922, he died from a bronchial attack in Washington, D.C. 
The Ku Klux Klan sent a cross of roses, eight feet high, to his 
funeral. 41 



5 

A large number of people have familiarized themselves with 
the Frank case, but their views concerning his guilt or inno- 



Aftermath 161 

cence have varied considerably. This is true not only of con- 
temporaries but of more recent chroniclers as well. Immedi- 
ately after the lynching, one scribe prophesied: "Future 
writers . . . will unanimously admit that Leo M. Frank was 
the victim of a biased sentiment, that his judicial rights were 
denied him and that his hanging on a lonely oak was the 
climax of a series of flagrant violations of justice which ig- 
nominiously but undoubtedly will raise him to the position of 
the first American martyr." 42 With the perspective of a dec- 
ade behind him, however, Herbert Asbury, who worked as a 
reporter for The Atlanta Georgian during the crisis over Mary 
Phagan's murder, wrote, "Frank's trial could hardly have 
been fairer." 43 And one of the newspapermen who witnessed 
the trial from the press table, MacLellan Smith, still remained 
adamant in his belief, fifty years later, that Leo Frank had 
murdered Mary Phagan. 44 Not quite convinced about either 
the defendant's guilt or innocence, Francis X. Busch, author 
of Guilty or Not Guilty , wrote: "One simply cannot, with 
evidence supporting reason, declare unequivocally that 
[Frank] was guilty or that he was not guilty. There is evi- 
dence and reasonable probability to support either conclu- 
sion." 45 

Yet Harold Ross, who reported the case for The Atlanta 
Journal, and C. Vann Woodward, who familiarized himself 
with the facts while writing his biography of Tom Watson, 
have reached different verdicts. Ross, who later founded The 
New Yorker magazine, commented in 191 5 that the evidence 
"did not prove [Frank] guilty beyond that 'reasonable doubt' 
required by law." 46 And in his penetrating study, Wood- 
ward wrote, "A fateful weight of irrelevant but prejudicial 
fact dogged Frank's case to the end," and then added that a 
Negro suspect was "later implicated by evidence overwhelm- 
ingly more incriminating than any produced against Frank." 47 

The more recent investigators, however, have been the 
most vocal in decrying the verdict of the courts. Charles and 
Louise Samuels, authors of Night Fell on Georgia, ended their 



1 62 Aftermath 

work with the statement: "Leo Frank was the victim of one 
of the most shocking frame-ups ever perpetrated by Ameri- 
can law-and-order officials." John Roche, who chronicled the 
development of civil rights in this century, stated, "As one 
who has read the trial record half a century later, I might 
add . . . that Leo Frank was the victim of circumstantial 
evidence which would not hold up ten minutes in a normal 
courtroom then or now." And Harry Golden echoed Roche's 
opinion that no one would be convicted today on the evi- 
dence which doomed Leo Frank. 48 



In retrospect, it seems that the Frank case illuminated the 
shape of historical forces long at work. It threw into dramatic 
relief the pressures, the frustrations, and the realities of the 
South's struggle to adjust to new ideas while still reluctant to 
part with the old. It mobilized the American Jews into a con- 
certed defensive action without precedent in the annals of our 
country, and it quickened the establishment of a new Ku 
Klux Klan. But above all, the Leo Frank case showed as 
clearly as possible that, if the laws of civilization are to be re- 
spected, societies must eradicate the conditions which turn 
men into beasts. For if they do not, other Leo Franks will 
continue to appear, and suffer punishment for crimes for 
which no single individual can ever be wholly responsible. 



APPENDIX A 



Excerpt from the Appeal of 
Frank's Lawyers for a New Trial 



in their petition for the new trial before the Georgia Supreme 
Court, Frank's lawyers included the following argument. It is 
reproduced from Frank vs. State of Georgia, Brief and Argument 
for Plaintiff in Error, in the Supreme Court of Georgia, October 
Term, 19 13, pp. 300-2. 

JUDGMENT OF THE COURT 

OVER-RULING THE MOTION 

FOR A NEW TRIAL 

After hearing extensive argument on the motion for a new 
trial, the same was over-ruled. In over-ruling the motion the 
Court rendered a judgment denying the same, and in rendering 
said judgment, stated "that the jury had found the defendant 
guilty; that he, the judge, had thought about this case more than 
any other he had ever tried; that he was not certain of the defen- 
dant's guilt; that with all the thought he had put on this case, he 
was not thoroughly convinced that Frank was guilty or innocent, 
but that he did not have to be convinced; that the jury was con- 
vinced, and that there was no room to doubt that. That he felt it 
to be his duty to order that the motion for a new trial be 
over-ruled." 

In the original motion for new trial, it was alleged that the 
verdict was contrary to the evidence and without evidence to 
support it. In passing upon this ground of the motion, the duty 
devolved upon the Judge of exercising his discretion, and in do- 



164 Appeal for New Trial 

ing so, he ought to have applied to the task the best of his brain, 
heart and conscience. 

If after so doing, the verdict met with his approval, it was his 
duty to over-rule the motion, but if it did not meet [with] his 
approbation, it was his duty to grant a new trial. 

This is a duty that no trial judge can fairly shirk. The danger 
of doing so is appalling; the temptation to do so is very great. 

This Court, keeping in mind the danger and the temptation, has 
repeatedly reversed the Court below when it appeared from the 
record that the trial Court, from timidity or from misapprehen- 
sion as to the law, failed to exercise his own discretion and substi- 
tuted the verdict of the jury for that discretion which it is his 
solemn duty to exercise. 

It is, of course, true that in determining whether the Court 
exercised or failed to exercise his legal discretion, this Court will 
look solely to the record, giving full force to the presumption 
that the Court has exercised his discretion and that the verdict 
does in fact meet [with] his approbation. 

In the present case, the Court rendered an oral judgment, as 
will be seen from the bill of exceptions. The whole of the judg- 
ment was not incorporated in the order over-ruling the motion 
for new trial, but the whole of that judgment was fully set out 
in the bill of exceptions. In determining just what was the judg- 
ment of the Court in over-ruling the motion, this Court will 
look to the whole record. If the record itself and the bill of 
exceptions are irreconcilably inconsistent, of the two, the record 
will prevail. 

When, however, there is no such inconsistency and it is legally 
possible to reconcile the record and the recitals in the bill of 
exceptions, this court will do so and give full force, not only to 
the record but to the recitals in the bill of exceptions, as well. 
Doing so, there can be no doubt that Judge Roan did not sanctify 
this verdict by exercising that discretion which the law demands. 
The words of his judgment portray on his part a state of mind 
wholly inconsistent with that settled conviction which a trial 
judge ought to possess in denying a motion for new trial. He was 
not thoroughly convinced that Frank was guilty. He was not 
thoroughly convinced that he was innocent. He did not have to 
be convinced. Conviction was not a part of his duty; that was the 



Appeal for New Trial 165 

province of the jury. They were convinced, and their conviction 
was to determine the matter, although he was still unconvinced. 

What must have been the state of mind of the trial judge when 
he denied this motion? What a turmoil of mental doubt and 
vacillation must have overwhelmed him! Think of the case as he 
might and as much as he said he did, he was still unable to find 
one single yard of solid, fixed conviction upon which to stand. 
Try as earnestly as he could, he reached and could reach no con- 
viction that satisfied his heart and conscience. Unsettled and per- 
turbed, with no hope for peace or rest, he cast the whole burden 
upon the jury. Undoubtedly they had been convinced — he was 
unable to become so, and in his dilemma, he put forward the 
discretion of the jury as an excuse for not exercising his own. 
Merchants & Miners Transportation Company v. Corcoran, 4 
Ga. App. 654; Rogers v. State, 101 Ga. 561; Central of Ga. Ry. 
Co. v. Hardin, 113 Ga. 453; Thompson v. Warren, 118 Ga. 644; 
Mclntyre v. Mclntyre, 128 Ga. 67; Griffin v. State, 12 Ga. App. 
622. 



APPENDIX B 



The Ballad of Mary Phagan 



Franklyn Bliss Snyder, "Leo Frank and Mary Phagan," The 
Journal of American Folk-Lore, XXXI (1918), 264-66. 



Little Mary Phagan 
She left her home one day; 
She went to the pencil-factory 
To see the big parade. 

She left her home at eleven, 
She kissed her mother good-by; 
Not one time did the poor child think 
That she was a-going to die. 

Leo Frank he met her 
With a brutish heart, we know; 
He smiled, and said, "Little Mary, 
You won't go home no more." 

Sneaked along behind her 
Till she reached the metal-room; 
He laughed, and said, "Little Mary, 
You have met your fatal doom." 

Down upon her knees 
To Leo Frank she plead; 



The Ballad of Mary Phagan 167 

He taken a stick from the trash-pile 
And struck her across the head. 



Tears flow down her rosy cheeks 
While the blood flows down her back; 
Remembered telling her mother 
What time she would be back. 

You killed little Mary Phagan, 
It was on one holiday; 
Called for old Jim Conley 
To carry her body away. 

He taken her to the basement, 
She was bound both hand and feet; 
Down in the basement 
Little Mary she did sleep. 

Newtley was the watchman 
Who went to wind his key; 
Down in the basement 
Little Mary he did see. 

Went in and called the officers 
Whose names I do not know; 
Come to the pencil-factory, 
Said, "Newtley, you must go." 

Taken him to the jail-house, 
They locked him in a cell; 
Poor old innocent negro 
Knew nothing for to tell. 

Have a notion in my head, 
When Frank he comes to die, 
Stand examination 
In a court-house in the sky. 



1 68 The Ballad of Mary Phagan 

Come, all you jolly people, 
Wherever you may be, 
Suppose little Mary Phagan 
Belonged to you or me. 

Now little Mary's mother 
She weeps and mourns all day, 
Praying to meet little Mary 
In a better world some day. 

Now little Mary's in Heaven, 
Leo Frank's in jail, 
Waiting for the day to come 
When he can tell his tale. 

Frank will be astonished 
When the angels come to say, 
"You killed little Mary Phagan; 
It was on one holiday." 

Judge he passed the sentence, 

Then he reared back; 

If he hang Leo Frank, 

It won't bring little Mary back. 

Frank he's got little children, 
And they will want for bread; 
Look up at their papa's picture, 
Say, "Now my papa's dead." 

Judge he passed the sentence 
He reared back in his chair; 
He will hang Leo Frank, 
And give the negro a year. 

Next time he passed the sentence, 
You bet, he passed it well; 
Well, Solister H. M. [Dorsey] 
Sent Leo Frank to hell. 



APPENDIX C 



Freeman's Tale 



an alternate explanation for the murder of Mary Phagan 
was published in 1923 when alleged data about Jim Conley's par- 
ticipation in the mystery came to light. The information had been 
received eight years earlier by Governor Slaton, from a question- 
able, but perhaps important, source. In 191 5 a Negro prisoner, 
identified only by the name "Freeman," thought that he was dy- 
ing in the federal penitentiary located in Atlanta, and revealed 
what he claimed to have know about Mary Phagan's death. Free- 
man made his statement to a prison doctor, who relayed it to 
Governor Slaton. 

The narrated story follows: Freeman recalled playing cards 
with Jim Conley in the basement of the pencil factory on the 
day of the murder. Shortly before noon Conley went up the lad- 
der to the main floor. After a short while Freeman heard muffled 
screams. Inquisitive, he climbed to the first floor and saw Conley 
struggling with someone. Frightened, Freeman returned to the 
basement and left the building through a rear door. Later that 
afternoon, Conley went to Freeman's home and said that he 
needed $3 but was short $1.80. In return for the money, Conley 
offered his friend a woman's mesh handbag. Freeman obliged. 
The following day, however, he read about the murder and Mary 
Phagan's missing mesh bag which contained her $1.20 wage. Fear- 
ing involvement, Freeman gave the mesh bag to a friend and ad- 
monished her to hide it in a safe place. He then fled the city. 
Within two months, however, he was convicted of a federal crime 
and imprisoned in Atlanta.* 

• The Baltimore Srm, October 2, 1923, "Frank's Prophesy of Vindication 
Comes True 10 Years After Georgia Mob Hangs Him as Slayer" The 



170 Freeman's Tale 

Why newspapers published Freeman's story for the first time 
in 1923, or how they obtained this information, was never ex- 
plained. But former Governor Slaton, the ex-prison doctor, and 
one of the Georgia Prison Commissioners verified, in 1923, that 
they had heard the. tale in 1915.* An Atlanta Constitution report 
noted "that proven inaccuracies in [Freeman's] story had dis- 
credited it." t Unfortunately the Constitution did not elaborate. 

Amazingly, The Atlanta Georgian had also received part of 
Freeman's tale, although not identified as such, in June, 191 3, be- 
fore Frank had gone to trial. On June 6, the Georgian headlined 
a front page account: "REPORT NEGRO WHO SAW 
PHAGAN ATTACK," and related how a federal prisoner was 
about to be returned to Atlanta by a Pinkerton detective. The 
Negro in question, according to the Georgian, had allegedly been 
shooting craps with Conley in the factory basement on the day 
of the murder. Conley, having lost his money and in a half- 
drunken stuper, then allegedly left the basement and attacked 
Mary Phagan, who had just come down from Frank's office after 
collecting her pay. The Georgian could not verify the report and 
subsequently dropped the story.J 

Additional corroboration for Freeman's tale came in 1959 when 
an Atlanta attorney published his memoirs. Relating how he knew 
of Frank's innocence, the attorney, A. L. Henson, claimed that 
Conley had confessed to his lawyer that he had been drinking in 
the factory basement on the day of the murder. According to 
Henson, Conley had also recalled having seen a girl approach him 
on the main floor, remembered struggling with her, and then his 
mind went blank. When Conley revived he was sitting opposite 
a dead girl in the factory basement, but he could not remember 
anything that had transpired in the previous few hours. § Hen- 



Jeivish Advocate (Boston), XLII (October 18, 1923), 20; AJ clipping, n.d M 
probably October 1 or 2, 1923, Frank Papers, Brandeis. 

* AC, October 2, 1923, p. 7. 

tlbid. 

X AG, June 6, 191 3, p. 1; June 10, 191 3, p. 1. 

§ Allen Lumpkin Henson, Confessions of a Criminal Lawyer (New York, 
'959) » P- 63. Other facts reported by Henson vary from contemporary 
reports, and I cannot vouch for his accuracy. In an interview with Samuel 
A. Boorstin, on October 12, 1953, John Slaton admitted that he had been 



Freeman's Tale 171 

son's narrative fits well with Freeman's tale and the story pub- 
lished in the Georgian. 



told by one of Hugh Dorsey's law partners that Jim Conley's lawyer 
believed that Conley committed the murder. Memorandum of a conversa- 
tion had by Boorstin with Slaton, Anti-Defamation League files, Leo 
Frank folder, New York City. 



APPENDIX D 



A Georgian's View 



the letter reprinted below is located among the Julius 
Rosenwald Papers at the University of Chicago. It was written 
at the end of 19 14 or the beginning of 191 5 by a newspaper re- 
porter for The Atlanta Georgian, identified solely as the "Old 
Police Reporter." The recipient of the letter is unknown. If it 
was not Julius Rosenwald, it might have been Albert Lasker or 
some other Northern Jew interested in obtaining Frank's freedom. 
This letter is significant because it represents the views of a 
considerable number of knowledgeable Georgians who reached 
their conclusions on the basis of the evidence printed in the news- 
papers and related at the trial. The author, however, was particu- 
larly familiar with the case. He attended the trial, had a number 
of personal interviews with Leo Frank, and also had access to the 
prosecutor. 

Dear Mr. 

My personal opinion is that Leo M. Frank is guilty of the mur- 
der of Mary Phagan, committed after an attempted seduction — 
probably successful, and most likely of a perverted type. This 
opinion was formed during a close attendance at the trial and in 
the course of ten or twelve conversations with Frank after 
the dust of action had had some six months to settle. 

As to the trial itself, our town seems to be getting in pretty 
bad with Collier's, the Chicago Tribune, and certain other pub- 
lications. It seems we are pistol-toters and browbeaters of juries 
and all that sort of thing .... I do not think Atlanta is getting 
a square deal in this matter. It is true there was a lot of excite- 
ment here during the trial. It is true there was a popular clamor 



A Georgian's View 173 

for a "goat." I think that is true in every city where any crime 
of especial horror is committed. It also is true there was some 
race prejudice in evidence; that the trial judge was a weak sister; 
that he was bullied lamentably by both sides during the trial, but 
notably by the defense; that the entire trial was under tension, 
so to speak. It has even been said that the Solicitor's closing 
speech was stopped early on Saturday afternoon and the case 
continued until Monday because a verdict was expected almost 
as soon as the jury got the case — and, it being Saturday, the town 
was well jammed with country people, who really were more 
worked up over the case than the city folk, if that is possible. 

I am not certain of this last statement; but it is certain there 
was a lot of excitement; you recall the first Hyde trial, of course. 
Well, this was much like that, except for a more pronounced 
animosity against Frank than was in evidence against Hyde. 

On the other hand, the Tribune and Collier's are guilty of gross 
exaggeration, particularly in detailing the conduct of the court- 
room crowd. To mv mind, the crowd was commendably quiet. 
The only break in the uniform good order was a ripple of ap- 
plause, perhaps twice, when Dorsey, the Solicitor, entered the 
room toward the end of the trial. It was rebuked promptly. As to 
the "hands moving toward hip-pokets," and the "cries of 'If you 
let the Jew go, we'll hang him and you, too' " — there simply was 
none of that, and no excuse for the injection of such stuff into 
any account of the case. 

The jury was unusually high-class in intelligence and in pre- 
sumptive character. We have the sworn statements of each that 
his conclusion was the result of his own unbiased consideration 
of the evidence — but of course they would say that. They all 
maintain that they heard nothing of the so-called "demonstra- 
tions" outside the courthouse — cheering in the streets the last 
day of the trial, and so on. But it would be nearly impossible and 
out of reason that those men should not have sensed the public 
sentiment. Still, the Supreme Court said Frank had a fair trial; 
and the trial judge said so — qualifying his statement with his 
peculiar remark, which I heard him make, and which was clipped 
from the Georgian as I wrote it, and made into part of the court 
record: 

"I am not convinced of the guilt or innocence of the defendant; 



174 A Georgian's View 

but I do not have to be convinced. The jury was convinced, and 
that is enough." 

My impression at the time was that Judge Roan was merely try- 
ing to placate Luther Rosser, chief lawyer for the defense, to 
whom it is said the judge is a political debtor of some kind. The 
remark was pan of Judge Roan's denial of a motion for a new 
trial before the case got up to the Supreme Court; and it was 
used for all it was worth in the plea to that body. 

So you see it is ticklish business, when the trial judge himself 
is not convinced, but says the defendant had a fair trial accord- 
ing to law. 

Frank is a well educated young man; a graduate of Cornell; a 
smooth, swift, and convincing speaker. If you have seen any 
good pictures of him, you will understand what I mean when I 
say that he looks like a pervert. It is a slightly significant fact, I 
think, that I sized him up as one the first time I saw him, before 
a whisper of the perversion testimony came out. . . . Others have 
told me they were impressed the same way. In strict confidence 
(that is, so far as any publication is concerned) Solicitor Dorsey 
told me of a fearful mass of testimony with which he said he was 
prepared to prove the perversion of the accused in the event the 
defense tried to back its character case to a finish, which it did 
not, refusing in every instance to cross-examine the witnesses put 
on by the state, who were (under the Georgia law) permitted on 
direct examination to answer no more than "Bad," to the state's 
question as to the character of the defendant. 

As to Frank's being convicted on the unsupported testimony 
of a "black brute" — I think that is peculiarly unfair to a section 
of which it has been the stigma that the negro could never get 
a fair deal in a court of law. 

I really am convinced that the State's case would have stood up 
without the negro Conley's testimony; and I know it to be a fact 
that Dorsey had practically finished what was to be his indict- 
ment case to the grand jury before Conley spilled a word. 
Whether Frank would have been indicted (Dorsey revised his 
case after Conlev loosened up) is another question. At any rate, 
it is worth while to note these points: 

i. That Leo Frank tried to fasten suspicion on two other ne- 
groes first, and never mentioned Conley until fairly pushed to it. 



A Georgian's View 175 

2. That Leo Frank knew Conley could write all the time, and 
was silent while knowing that Conley was denying he could 
write; the inference being that Frank was shielding Conley lest 
Conley should open up on him. 

3. That the several untrue statements of Conley, of which so 
much is made by Collier's, were simply the efforts of the un- 
tutored Afro- American to shield his boss — and get the $200 prom- 
ised him by Frank. As soon as Conley saw he was getting into it 
himself, he promptly threw Frank overboard and came through 
with the goods. 

4. That Frank never was able to account for his time during 
the half hour the state contends he was engaged with Mary 
Phagan. 

That Frank, after seeing the girl's body the morning after the 
murder, and hearing the name, said he did not know if such a 
girl worked at the factory, and would have to look it up on the 
rolls, whereas it was shown that he had spoken to Mary Phagan 
frequently calling her by name. 

These are only a few points. The "murder notes" are a queer 
business all to themselves. For my part, I do not undertake to say 
or guess if Frank dictated them to Conley, who certainly wrote 
them; or if the negro being ordered to dispose of the body by 
burning it, changed his mind and wrote the notes of his own 
volition. 

But I will say that I heard Conley's evidence entire, and was 
impressed powerfully with the idea that the negro was repeating 
something he had seen; that was photographically fixed on his 
mind; perhaps vou know something of the remarkable capacity 
for observing and recalling details exhibited by crude minds, 
especially in negroes .... Conlev's story was told with a 
wealth of infinitesimal detail that I firmly believe to be beyond 
the capacity of his mind, or a far more intelligent one, to con- 
struct from imagination .... For example .... "And when 
we run the elevator back up to the office floor, it didn't quite 
get to the level, and Mr. Frank, he stumbled and like to fell 
down, and cussed, and brushed his pants off, this way." That sort 
of thing, all the way. 

And the next day, with upwards of fifty typewritten pages of 
solid testimony to check him by, Luther Rosser tore into that 



176 A Georgian's View 

nigger, hour after hour, up and down and sidewise, misquoting 
his testimony, skipping about — every trick of a trained lawyer — 
and he did not shake that nigger once or make him contradict 
himself. It just stuck in my craw, Mr. X, that that nigger was 
telling something he had SEEN 

Well, I've no idea you wanted all this stuff, but it's easy to 
write and maybe you will find something of interest in it. I have 
thought about it a good deal, and have come to the conclusion 
stated in Paragraph I; but I must say honestly that I am one of 
those persons who find it easier to hold a man guilty until he 
proves himself innocent than the vice versa laid down in our won- 
derful system of jurisprudence .... To go the whole route, 
my theory of the crime is that Frank is a pervert; that he kept 
after Mary Phagan until he dated her up, for that Decoration 
Day afternoon, in the "metal room" of the factory; that he fright- 
ened her by his unnatural behavior; and that either in the fright, 
or in the revulsion following the performance she began to cry 
and became hysterical, probably insisting, louder and louder, that 
she was going to "tell on him" — she was only a little girl, you 
know. . . . Then I can imagine Frank trying to pacify her; per- 
haps backed up against the locked door, imploring her to be quiet; 
perhaps she even attacked him in her frenzy to be away. Anyway, 
I imagine he tried to hold her, and she wrenched herself violently 
away, falling against a lathe and knocking herself unconscious 
.... Frank may have thought her dead; anyway, it was his last 
chance, for nothing but death would stop her story now .... 
So he made sure by strangling her .... And then, in the ghastly 
jangle of his nerves, he sought aid from his Man Friday — Jim 
Conley, who was watching below, as he testified he had watched 
many another Saturday afternoon while Frank "chatted" with 
women in the deserted factory. 

It may be all wrong, Mr. X, but that's my honest opinion. It 
amounts to a conviction. I believe Frank to be guilty, and I think 
he had as fair a trial as could have been had with all the public 
stress of the case, which could not have been avoided in any way 
that I can see. Anyway, the Supreme Court said he had a fair 
trial, and so far as we poor mortals are concerned we have to 
take the findings of our highest courts as the ultimate truth. Leo 
Frank and Jim Conley and God know the truth of this thing. 



A Georgian's View 177 

Frank says one thing; Conley says another and more probable 
thing. God hasn't said anything yet — unless He speaks through 
juries and Supreme Courts. . . . Anyway, this is just my humble 
personal opinion, as you asked for it — and if I have been tiresome, 
I apologize heartily. 

With best wishes to yourself and all the boys for the coming 
year, and all the rest of them, I am 

Sincerely yours, 



Notes 



I. THE MURDER OF MARY PHAGAN 



i. The Atlanta Constitution "extra," April 27, 191 3, pp.i, 2; 
April 28, 1913, pp. 1, 2; The Atlanta Journal, April 28, 1913, pp. 
1,2; cited hereafter as AC and A J. 

2. AC, May 8, 191 3, p. 2. 

3. AC, April 27, 1913 "extra," pp. 1, 2; April 28, 191 3, pp. 1, 2. 

4. Henry A. Alexander, Some Facts about the Murder Notes 
in the Phagan Case (privately published pamphlet, 19 14), pp. 5, 7. 

5. A. B. Macdonald, "Has Georgia Condemned an Innocent 
Man to Die?" The Kansas City [Mo. | Star, January 17, 191 5, 
p. iC. 

6. Frank v. State, Brief of the Evidence, pp. 15, 43. 

7. Ibid., pp. 38, 43. 

8. The Atlanta Georgian, April 28, 191 3, p. 2; April 29, 191 3, 
p. 2; cited hereafter as AG. 

9. Macdonald, The Kansas City Star, January 17, 1915, p. 2C; 
AG, April 29, 191 3, p. 2; The Savannah Morning News, April 30, 
19 1 3, p. 1; cited hereafter as SMN. 

10. AG, April 28, 191 3, p. 1; AJ, April 28, 191 3, p. 1. Careful 
newspaper readers, however, might have noticed in the Constitu- 
tion that same morning: "The deed, apparently, was committed 
upon either the first or second floor. No blood or marks of scuffle 
can be found, however, on either." AC, April 28, 191 3, p. 2. The 
state biologist later stated that he could not identify the hair as 
Mary Phagan's. See pp. 84-85. 

11. AG, April 28, 1913, p. 1; April 30, 1913, p. 1; AJ, April 29, 
191 3, p. 1. This information was later proved to be false. 

12. Quoted in SMN, April 30, 191 3, p. 1. 

13. The New York Times, August 26, 191 3, p. 18; February 



180 notes: Pages 6-7 

18, 1914, p. 3; AC, June 1, 1915, p. 4; AG, May 13, 1913, p. 2; in- 
terview with Alexander Brin, a Boston reporter who covered the 
later stages of the Frank case, August 19, 1964; Charles and Louise 
Samuels, Night Fell on Georgia (New York, 1956), p. 21. 

14. AC, April 30, 191 3, p. 2. 

15. Elmer R. Murphy, "A Visit with Leo M. Frank in the 
Death Cell at Atlanta," Rhodes* Colossus, March, 19 15, p. 3. 
Murphy added, however, that when he learned to know Frank, he 
found him a very fine person. Mrs. Samuels told me that in the 
course of her research she spoke with reporters who covered 
Frank's trial. They found him to be a cold person, and difficult 
to like. Alexander Brin, on the other hand, thought Frank a very 
warm, friendly person. 

16. AG, April 29, 191 3, p. 2; AC, April 30, 191 3, p. 1. That 
Mrs. Frank tried to visit her husband appeared quite insignificant 
on April 29. Hugh Dorsey, the prosecuting attorney, would argue 
at Frank's trial, however, that Mrs. Frank waited two weeks be- 
fore visiting her husband, and he concluded that this proved Mrs. 
Frank knew her husband was guilty. 

17. SMN, May 1, 19 13, p. 1; The Augusta Chronicle, May 2, 
19 1 3, p. 6; cited hereafter as TAC. 

18. C. P. Connolly, The Truth about the Frank Case (New 
York, 19 1 5), pp. 55-56. 

19. Atlanta's population soared from 89,872 in 1900 to 173,713 
in 19 1 3. AC, January 18, 19 15, p. 1. 

20. William D. Miller, Memphis during the Progressive Era, 
1900-191J (Memphis, 1957), p. 8. 

21. A United States government survey reported in 1910 that 
90 per cent of the children in Georgia earned less than $6 a week. 
U.S. Congress, Senate, Report on Conditions of Woman and 
Child Wage-Earners in the United States, 61st Cong., 2d sess., 
19 10, Senate Document 645, Serial 5685, 1, 310; "Dixie Conditions 
Stir Unionists — Description of Actual State of Atlanta Textile 
Workers Make Delegates Weep," The Textile Worker, III (De- 
cember, 1914), 21. The cost of living in 191 3, in Atlanta, was the 
second highest in the nation (Boston was first), and wages lagged 
behind those paid in the northern cities, The Atlanta Journal, 
September 17, 191 3, p. 1; cited hereafter as AJ. See also W.J. 
Cash, The Mind of the South (New York, 1941), p. 247. C. Vann 



notes: Page 8 181 

Woodward reported that in 1912 and 191 3 hourly earnings in 
New England averaged 37 per cent above those in the South. 
Origins of the New South (Baton Rouge, 195 1 ), pp. 420-2 1. U.S., 
Report of the Industrial Commission, 1901, VII, 56, 57. A few 
years later the U.S. Senate's Report on . . . Wage-Earners . . . , 
noted that the average work week in Georgia cotton mills 
in 1908 was 64 hours, which was longer than the work week in 
Virginia, North Carolina, South Carolina, Alabama, and Missis- 
sippi. Of the 3 1 establishments that the Commission investigated, 
16 had a 64-hour week; 40 minutes was the average lunch time, 
p. 261. A. J. McKelway, "Child Labor in the South," The Annals, 
XXXV (January, 1910), 163. 

22. Lenora iJeck Ellis, "A New Class of Labor in the South," 
Forum, XXXI (May, 1901), 307; S. A. Hamilton, u The New 
Race Question in the South," Arena, XXVII (April, 1902), 356; 
C. Vann Woodward, Tom Watson: Agrarian Rebel (New York, 
1938), pp. 219, 223-24, 418; Edmund De S. Brunner, Church Life 
in the Rural South (New York, 1923), p. 21; Annual Report of 
the Atlanta Chamber of Commerce, 1909, p. 5; The Textile 
Worker, III (December, 1914), 21; The Journal of Labor, XV 
(November 7, 19 13), 4; Report of the Comptroller of the City 
of Atlanta, for the Year Ending 191 1, pp. 15, 16, 20, 32, 41, 42; 
U.S. Bureau of the Census, General Statistics of Cities: 190% pp. 
88, 148. 

23. Dewey W. Grantham, Jr., Hoke Smith and the Politics of 
the New South (Baton Rouge, 1958), pp. 149, 150, 178; Wood- 
ward, Tom Watson, pp. 374-78; Glenn Weddington Rainey, "The 
Race Riot of 1906 in Atlanta" (unpublished Master's thesis, De- 
partment of History, Emory University, 1929), chap. 5 (no pagi- 
nation); Ray Stannard Baker, "Following the Color Line," The 
American Magazine, LXIII (April, 1907), 563, 569. 

24. U.S. Bureau of the Census, Statistics of Cities for 1905, p. 
324; Statistics of Cities: 1907, pp. 102, 107, 410. I have been un- 
able to find an exact census of Negroes in Atlanta for 1905. The 
census of 1900 listed 45,532 Negroes residing in Fulton County 
(Atlanta comprised 85 per cent of the county), and the census 
of 1910 listed the figure as 57,985. I assume, therefore, that At- 
lanta had about 50,000 Negroes in 1905. Similarly, I have not 
found a breakdown between the number of whites and Negroes 



1 82 notes: Pages 9-1 1 

arrested in Atlanta in 1905. But according to the census of 1910, 
9,717 Negroes were committed to prison in Georgia that year, 
against 2,684 whites. U.S. Bureau of the Census, Negro Popula- 
tion, 1790-191 j (Washington, 1918), pp. 437, 779. 

25. Hugh C. Weir, "The Menace of the Police: II. The Bully 
in the Blue Uniform," World To-day, XVIII (1910), 174; Philip 
Weltner, "Municipal and Misdemeanor Offenders," The Call of 
the New South, edited by James E. McCulloch (Nashville, 191 2), 
pp. no, III., 

26. G. W. Dyer, "Southern Problems That Challenge Our 
Thought," The' Call of the New South (McColloch, editor), p. 

27. AG, April 28, 191 3, p. 3. 

28. Cash, p. 118. 

29. The Memphis Commercial Appeal, June 7, 1904, as quoted 
in William D. Miller, p. 25. 

30. Broadus Mitchell, The Rise of Cotton Mills in the South 
(Baltimore, 192 1), p. 195. To some extent, this attitude existed in 
the North also. 

31. Ibid., p. 194. 

32. Arthur G. Powell, / Can Go Home Again (Chapel Hill, 
1943), p. 287. 

33. Quoted in AG, April 28, 191 3, p. 3. 

34. Journal of Labor, XV (May 2, 191 3), 4. The opinions of 
the working classes might have had a greater influence in Atlanta 
than in a city with a different power structure. An economist has 
commented upon the influence of labor in Atlanta. He noted that 
the Mayor of Atlanta in 191 3 was a member of the typographical 
union, and that two-thirds of the city's wards were dominated by 
workingmen. This fact was reflected in the composition of At- 
lanta's city council. Mercer G. Evans, "The History of the Or- 
ganized Labor Movement in Georgia" (unpublished. Ph.D. disser- 
tation, Department of Economics, University of Chicago, 1929), 
p. 289. 

35. AC, April 28, 191 3, p. 3; AG, April 28, 191 3, p. 2; AJ, July 
30, 191 3, p. 4. 

36. AG, April 28, 1913, p. 5; April 29, 1913, p. 1; AJ, July 27, 
1913, p. 1; SMN, April 30, 1913, pp. 1, 5. 

37. N. W. Aver and Sons, American Newspaper Annual and 



notes: Pages 11-15 183 

Directory (Philadelphia, 191 1, 1912, 1913, 1914), listed the fol- 
lowing circulation figures: 

1910 1911 1912 191$ 

AC 35,454 41,519 41405 42405 

AG 42,858 40,000 38,000 60,000 

AJ 52,035 51,827 52,000 54,000 

38. W. A. Swanberg, Citizen Hearst (New York, 1963), p. 232. 

39. Herbert Asbury, "Hearst Comes to Atlanta," The Ameri- 
can Mercury, VII (January, 1926), 87-88. 

40. See n. 37, supra. 

41. Asbury, The American Mercury, VII (January, 1926), 89. 

42. Ibid., p. 87; William Curran Rogers, "A Comparison of 
the Coverage of the Leo Frank Case by the Hearst-Controlled At- 
lanta Georgian and the Home-Owned Atlanta Journal, April 28, 
191 3 — August 30, 191 3" (unpublished M.A. thesis, University of 
Georgia, 1950), p. 66; Paul Rosenblum, printer for The New 
York Times, told me that there are 176 inches in each page of 
the newspaper. 

43. AG, April 28, 191 3, pp. 1-5; clipping in Boston Herald- 
Traveler newspaper morgue, June 8, 19 15. 

44. Miller, p. 29; Richard Hofstadter, The Age of Reform 
(New York, i960, Vintage edition), pp. 188-89. 

45. W. I. Thomas, "The Psychology of the Yellow Journal," 
American Magazine, LXV (March, 1908), 492. 

46. AC, April 30, 191 3, p. 2. 

47. AJ, April 28, 1913, p. 1; April 29, 1913, p. 1; AG, April 
29, 191 3, p. 1. 

48. AG, April 29, 191 3, p. 1, extra No. 5. 

49. AC, April 30, 191 3, p. 1; A J, April 30, 191 3, p. 1. 

50. SMN, May 1, 191 3, p. 3. 

51. SMN, May 2, 1913, p. 2. 

52. TAC, May 2, 191 3, p. 1. 

53. AC, April 29, 19 1 3, p. 4. 

54. Among the seven, two were quickly released because there 
was no evidence against them. Two others were Negroes, and 
after the police questioned them, the two were put in cells and 
the police forgot about them for a while. Both were eventually 
released. Newt Lee, Leo Frank, and Jim Conley, a Negro sweeper 
in the pencil factory, were the only three who received serious 



184 notes: Pages 16-18 

press attention after the first two or three days following the 
murder. 

55. AC, May 11, 191 3, p. 1. 

$6. AC, iYlay 16, 1913, p. 1; May 17, 1913, p. 4. 

57. Burns, in fact, did not reach Atlanta until 1914. And at that 
time, he was in the employ of Leo Frank's attorneys. The reason 
for this is that shortly after his agents began working for the city 
of Atlanta, Solicitor Dorsey satisfied himself that he had enough 
evidence to convict one of his suspects, and that the services of 
the Burns agency would no longer be necessary. See below, p. 23. 

58. Macdonald, The Kansas City Star, January 17, 1915, p. iC; 
Connolly, p. 40; Murphv, Rhodes's Colossus, March, 191 5, p. 6; 
Samuels, p. 19. 

59. Murphy, Rhodes' s Colossus, March, 19 15, p. 6. 

60. Quoted in Samuels, p. 20. 

61. AC, May 1, 191 3, p. 1. A few days earlier an Atlanta Geor- 
gian reporter interviewed young Epps and the boy told the re- 
porter that he sometimes rode into town with Mary Phagan but 
did not mention that he had done so on the fatal day. Connolly, 
pp. 28-29. 

62. AC, May 8, 191 3, p. 2; AG, May 9, 191 3, pp. 1, 2. 

63. AC, May 9, 191 3, p. 1. 

64. AC, May n, 1913, p. 1. 
6$. AC, May 23, 191 3, pp. 1, 2. 

66. AJ, May 3, 191 3, p. 1; Anon., "Why Was Frank Lynched?" 
Forum, LVI (December, 19 16), 686. 

67. AC, April 29, 1913, p. 3; AG, May 7, 191 3, p. 1; Macdonald, 
The Kansas City Star, January 17, 191 5, p. iC; Manning Jasper 
Yeomans, "Some Facts about the Frank Case" (unpublished the- 
sis, Emory University, n.d., ca. 191 5), p. 4. 

68. Abraham Cahan, Blatter Von Mein Leben (5 volumes; New 
York, 1931), V, 494. The section on Leo Frank was translated for 
me by mv father, Abraham Dinnerstein; Connolly, p. 14. Samuels, 
p. 26. 

69. Interview with McLellan Smith in Washington, April 2, 
1964. Mr. Smith covered the trial of Leo Frank as a cub reporter 
for The Atlanta Georgian. Samuels, p. 26; The New York Times, 
December 20, 19 14, IV, 9; AC, March 14, 19 14, p. 2; AJ, May 
12, 191 3, p. 1; The Baltimore Morning Sun, November 19, 1914, 



notes: Pages 19-23 185 

p. 3; Macdonald, The Kansas City Star, January 17, 191 5, p. iC; 
Yeomans, unpublished thesis, p. 5; Sam P. Maddox to Luther Ros- 
ser, June 10, 1915, John M. Slaton Manuscripts, Brandeis Univer- 
sity (cited hereafter as Slaton, Brandeis); Wytt E. Thompson, 
A Short Review of the Frank Case (Atlanta, 19 14), p. 25. 

70. Thompson, p. 26. 

71. Even though newspapers reported that Mary Phagan had 
been raped, doctors could not find any evidence to substantiate 
this point. 

72. SMN, August 31, 191 3, clipping in Leo Frank Papers 
(American Jewish Archives, Cincinnati), cited hereafter as Frank 
Papers. Since all newspaper references to the Frank Papers are 
clippings, the word "clipping" will not be repeated. 

73. AC, May 18, 191 3, p. 2. 

74. AC, May 27, 191 3, p. 1. 

75. AJ, May 18, 191 3, p. 1. 

76. The Frank Case: Inside Story of Georgia's Greatest Mys- 
tery (Atlanta, 19 14), pp. 39-40. 

77. AC, May 25, 191 3, p. i; The New York Times, November 
20, 1914, p. 5; Connolly, p. 40. 

78. AJ, May 24, 191 3, p. 1. 

79. In subsequent affidavits, Conley would acknowledge that 
he had written both the murder notes, but in his statement of 
May 24 he maintained that Frank had written the other. 

80. AG, May 1, 191 3, p. 1; AC, October 4, 1914, p. 1. 

81. John D. Lawson (ed.), American State Trials (10 vols.; St. 
Louis, 1918), X, 245; AJ, May 24, 191 3, p. 1; AC, May 25, 191 3, 
p. 1; AG, May 24, 191 3, p. 1; May 25, 191 3, p. 1. 

82. AC, August 6, 191 3, p. 2; Arthur Garfield Hays, Trial by 
Prejudice (New York, 1933), pp. 312-13; The Baltimore Morn- 
ing Sun, November 21, 19 14, p. 1; Macdonald, The Kansas City 
Star, January 17, 19 15, p. 2C. 

83. Lawson (ed.), X, 236. 

84. AJ, May 29, 191 3, p. 1; AG, August 7, 191 3, p. 1. 

85. AG, May 19, 191 3, p. 2. 

86. The Grand Jury had not been informed of Conley's state- 
ment. Like everyone else, the jurors read about it in the news- 
papers after they had indicted Frank. 

87. Lawson (ed.), X, 237; AG, May 24, 191 3, p. 1. 



1 86 notes: Pages 23-28 

88. AJ, May 23, 1913, p. 7; AC, May 25, 1913, p. 1; May 27, 
1913, pp. i, 2; AG, May 25, 191 3, p. 2; May 26, 191 3, p. 1. 

89. The following items appeared in successive editions of The 
Atlanta Georgian, May 28, 1913, p. 2: (1) "Despite the new de- 
velopments, the detectives, of course, stand firmly by their theory 
of Frank's guilt. They assert that they have the testimony of four 
handwriting experts that the writing on the notes found by the 
body of Mary Phagan positively is that of Frank. This evidence 
is lessened in importance by the fact that three other handwriting 
experts have declared as positively that the writing is that 
of Newt Lee. ..." (2) The same officials who "had announced 
that they had conclusive evidence 'by experts' . . . that Frank 
wrote the notes," now say that Conley has written them. See 
also AJ, May 28, 191 3, p. 1. 

90. AJ, May 26, 1913, p. 1. 

91. Frank v. State, Brief of the Evidence, p. 81. 

92. Lawson (ed.), X, 245-48; AJ, May 29, 191 3, p. 1. 

93. AG, May 28, 191 3, p. 1; May 29, 191 3, p. 1; May 30, 191 3, 
p. 2; AJ, June 2, 191 3, p. 9. 

94. AJ, May 29, 191 3, p. 24. 

95. AG, May 30, 1913, p. 2. 

96. A J, May 30, 1913, p. 4. 

97. AC, May 30, 191 3, p. 1. 

98. Lawson (ed.), X, 248-50. 

99. AJ, May 30, 1913,^4. 

100. AG, May 30, 191 3, p. 1. 

101. AC, June 1, 1913, p. 1. 

102. Ibid., p. 2. 

103. AJ, June 1, 1913, p. 1. 

104. AC, July 19, 191 3, p. 1. 

105. AC, June 3, 191 3, p. 1. 

106. AG, June 5, 191 3, p. 1. 

107. AJ, June 4, 191 3, p. 1; AG, June 4, 191 3, p. 1; AC, June 

5> 1913* P- 3- 

108. AG, June 5, 1913, p. 2; AJ, June 6, 191 3, p. 9. 

109. AG, June 5, 191 3, p. 1; AJ, June 5, 191 3, p. 1. AC, June 
6, 191 3, p. 2. 

no. AG, June 5, 191 3, p. 1; AJ, June 5, 191 3, p. 1; the word- 
ing of Dorsey's reply varies slightly in the two publications. 



notes: Pages 28-31 187 

in. AG, June 19, 191 3, p. 1. 

112. AG, June 21, 191 3, p. 1. 

113. Quoted in AJ, June 22, 191 3, p. 1. 

114. AG, July 10, 191 3, p. 1. 

115. AG, July 11, 191 3, p. 1. 

116. AC, July 22, 191 3, p. 1. 

117. AJ, July 18, 191 3, p. 1. 

118. AC, July 22, 1913, p. 1. The minutes of this meeting are 
not available. 

1 19. During the first week after the murder there was a great 
deal of confusion in the city, and this was reflected in the news- 
papers which published rumor and hearsay, information and mis- 
information, indiscriminately. My comments concerning the 
newspapers' handling of the case, therefore, refer to the treat- 
ment given after May 5 or 6, 191 3. 

120. The Constitution, for example, published a full-page ar- 
ticle the day before the trial opened, lauding the detectives who 
"solved" the murder case. AC, July 27, 191 3, magazine section. 

121. The statements from the policeman who thought he had 
seen Frank alone in a park with a young girl the previous year 
and from the proprietor of the "rooming house" that Frank had 
allegedly phoned on the night of the murder were both pub- 
lished first in the Constitution, 

122. Harold Ross wrote this for a San Francisco newspaper in 
June, 191 5. It is reprinted in Harry Golden, A Little Girl Is 
Dead (Cleveland, 1965), pp. 355—58. 

123. AG, May 11, 191 3, p. 2. 

124. AG, June 22, 191 3, p. 2. 

125. AJ, May 8, 191 3, p. 1. 

126. AC, May 23, 191 3, p. 2. 

127. AG, June 11, 191 3, p. 2. 

128. AC, May 30, 191 3, p. 2. 

129. AJ, July 18, 191 3, p. 1. 

130. AC, July 19, 191 3, p. 1. 

131. Even an astute observer like C. Vann Woodward ac- 
cepted, uncritically, the views of Northern journalists. In his biog- 
raphy, Tom Watson, Woodward wrote, "The Atlanta press im- 
mediately assumed the guilt of Frank . . . ," p. 435. 

132. Sec below, pp. 79-80 and 94. 



1 88 notes: Pages 32-36 

133. The impression of the Jew as alien existed in the South 
even though his ancestors might have served in the Confederate 
army. Cash, pp. 305, 342. 

134. Arnold Rose, "Anti-Semitism's Root in City-Hatred," 
Commentary y VI (1948), 375-77; Jacob J. Weinstein, "Anti- 
Semitism," in Oscar I. Janowsky (ed.), The American Jew (New 
York, 1942), pp. 187, 188; Oscar Handlin, "American Views of 
the Jew at the Opening of the Twentieth Century," Publications 
of the American Jewish Historical Society , XL (June, 195 1), 344; 
John P. Roche, The Quest for the Dream (New York, 1963), p. 
88; Howard M. Sachar, The Course of Modern Jewish History 
(Cleveland, 1958), p. 139. For a more extensive discussion of Jews 
and anti-Semitism, see chapter III. 

135. Arthur Train, "Did Leo Frank Get Justice?" Everybody's, 
XXXII (March, 1915), 317. 

136. Thompson, p. 29. 

137. "The Case of Leo M. Frank," The Outlook, CX (May 26, 
1915), 167. 

138. John Higham, Strangers in the Land (New Brunswick, 

i955)i P- 185. 

139. The Jefferso7iian, April 9, 19 14, p. 8. (Italics in original.) 

140. L. O. Bricker, "A Great American Tragedy," The Shane 
Quarterly, IV (April, 1943), 9°- 

141. DeWitt H. Roberts did a study of the Frank case for the 
Anti-Defamation League in 1953. He wrote to me that in 193 1 he 
had been present during a "heated but good-natured argument" on 
the subject of Frank's guilt. At that time one of Dorsey's as- 
sistants still maintained that Frank had been guilty. Roberts to 
Leonard Dinnerstein, February 19, 1964. See also Appendix D. 

142. AG, May 30, 191 3, p. 1. DeWitt H. Roberts to Leonard 
Dinnerstein, February 19, 1964. 

143. AG, July 27, 1913, p. 1. 

144. A J, July 26, 191 3, p. 1. 

II. PREJUDICE AND PERJURY 

i. AC, August 4, 191 3, p. 2; August 17, 191 3, p. 2A; AG, July 
27, 1913, p. 1. 
2. SMN, August 10, 191 3, p. 3; AC, August 4, 191 3, p. 2. 



notes: Pages 37-47 189 

3. AG, July 27, 191 3, p. 2. 

4. Ibid. 

5. Herbert Haas and Co. was the legal firm retained by Frank. 
Rosser and Arnold, however, directed the presentation in court. 
AC, July 27, 1913, p. 2; June 22, 1913, p. 1; AJ, June 22, 1913, 
p. 1. 

6. AC, July 27, 191 3, p. 1. 

7. Lawson (ed.), X, 197, 201, 242; AJ, August 2, 191 3, p. 5. 

8. AC, August 5, 19 1 3, p. 2; August 13, 19 13, p. 2; SMN, Au- 
gust 6, 191 3, p. 1; AJ, August 3, 1913, p. 1; AG, July 27, 191 3, 
p. 2; August 3, 1913, p. 1; TAC, August n, 191 3, p. 1. 

9. AJ, August 4, 191 3, p. 6. 

10. Lawson (ed.), X, 202. 

11. Frank v. State, Brief of Evidence, pp. 54-58. 

12. AG, August 4, 191 3, p. 2; AC, August 5, 191 3, p. 2; SMN, 
August 6, 191 3, p. 1. 

13. Frank v. State, Brief of the Evidence, pp. 59-73, passim. 

14. AG, August 5, 1913, p. 4; August 6, 191 3, p. 3; AJ, Au- 
gust 4, 191 3, p. 6; August 10, 191 3, p. i. 

15. The Memphis Commercial Appeal, January 3, 19 15, p. 5; 
see also Macdonald, The Kansas City Star, January 17, 191 5, p. 
2C; Hal Steed, Georgia: Unfinished State (New York, 1942), p. 
238. 

16. Interview with Mcf^llan Smith, April 2, 1964, Washing- 
ton, D.C. 

17. Quoted in AC, August 6, 191 3, p. 2. 

18. AC, August 6, 191 3, p. 2; August 7, 191 3, p. 2; AG, Au- 
gust 21, 191 3, p. 3. 

19. AC, August 7, 191 3, p. 3; AG, August 7, 191 3, p. 3; Chat- 
tanooga Daily Times, August 7, 19 13, p. 1. Technically Arnold 
could not ask for a mistrial at the point that he jumped up be- 
cause the jury had been excused for a few moments and had not 
been present to hear the demonstration. Other grounds for a mis- 
trial had presented themselves earlier in the trial, before Conley 
testified. The jury observed Judge Roan reading a copy of The 
Atlanta Georgian. Roan held the paper so that every juror could 
read the headline emblazoned in red: "STATE ADDING LINKS 
TO CHAIN." The defense attorneys asked Roan at that time to 
caution the jurors about ignoring newspaper headlines when they 



190 notes: Pages 48-53 

reached their conclusion and did not press for a mistrial. Roan 
did as he was asked. AG, August 3, 191 3, p. 1; AC, August 3, 
191 3, p. 1; SMN, August 3, 191 3, pp. 1, 3; AC, December 17, 
1913, p. 1. 

20. "The Prosecution of Leo M. Frank," Frost's Magazine, I 
(August, 191 3), 1,2. 

21. Frank v. State, Brief of the Evidence, pp. 26, 41, 54, 83-84, 
103-17, 153-54, 229—32; Lawson (ed.), X, 220; AC, August 7, 
1913, p. 3. 

22. AC, August 17, 191 3, p. 2 A. 

23. Lawson (ed.), X, 227, 237; AG, August 21, 1913, p. 3; 
AC, August 19, 19 1 3, p. 1. 

24. AC, August 9, 191 3, p. 1; August 17, 191 3, pp. 2 A and 4A; 
August 18, 191 3, pp. 1, 2. 

25. AJ, August 15, 191 3, pp. 6, 20; August 14, 191 3, p. 6; AG, 
August 18, 191 3, p. 2. 

26. Leo M. Frank v. State of Georgia, Motion for a New Trial, 
p. 107. 

27. Quoted in AC, August 14, 191 3, pp. 1, 3. The Atlanta 
Journal and The Atlanta Georgian reported Mrs. Frank's out- 
burst but did not include the words "you dog" as part of her 
remark. AJ, August 13, 191 3, p. 1; AG, August 13, 19 13, p. 1. 
The New York Sun, on the other hand, quoted Mrs. Frank as 
saying, "No, nor you either — you Christian dog!" October 12, 
191 3, p. 6. 

28. AC, August 13, 1913, p. 1; Thompson, p. 25. 

29. Lawson (ed.), X, 238, 239, 242; AJ, August 21, 1913, p. 2. 

30. Lawson (ed.), X, 264, 266. 

31. AC, August 24, 191 3, p. 1. 

32. AC, August 24, 1913, p. 1; AG, August 23, 1913, p. 1; 
Lawson (ed.), X, 302, 303, 312. The windows of the court- 
room were constantly open because of the heat. Since the room 
was on the main floor of the building some of the voices traveled 
clearly to the outside. At times Dorsey's summation was so im- 
pressive that murmurs of applause could be heard inside of the 
courtroom from those assembled outside of the building. 

33. Lawson (ed.), X, 319. 

34. Ibid., p. 321. 

35. This is one of the rumors that traveled through Atlanta 



notes: Pages 54-56 191 

after Frank's arrest. It is not without foundation, however. Al- 
though Mrs. Frank rushed to the police station as soon as she 
heard of her husband's arrest, the police refused her permission to 
see him. Mrs. Frank did not visit her husband again until May 1 1 
— reportedly because he expected to be released at any moment 
and did not want to have her humiliated by visiting him in jail. 
AG, April 29, 191 3, p. 1; AC, April 30, 1913, p. 1; AG, May 12, 
191 3, p. 1. 

36. Lawson (ed.), X, 395. 

37. AJ, August 23, 1913, p. 1; AG, August 24, 1913, p. 1. 

38. AG, August 22, 1913, p. 1; August 23, 1913, p. 1; August 

24, 1913, p. 1; AC, August 23, 1913, p. 1; AJ, August 24, 1913, p. 
1; AC, October 24, 191 3, p. 7. 

39. Frank v. Mangum, 235 Supreme Court Reporter 594 ( 19 14). 

40. Frank v. State , Motion for a New Trial, p. 1 30. 

41. AC, October 25, 191 3, p. 14; 235 Supreme Court Reporter 

594 09'4)- 

42. AC, August 26, 191 3, pp. 1, 2. 

43. The twelve men included one bank teller, one bookkeeper, 
one real estate agent, one manufacturer, one contractor, one opti- 
cian, one railroad claims agent, one mailing clerk, two salesmen, 
and two machinists. Franklin M. Garrett, Atlanta and Environs 
(3 vols.; New York, 1954), II, 622. 

44. AC, August 26, 191 3, p. 1. Conley was tried as an accessory 
to the crime in February, 19 14. He was found guilty and sen- 
tenced to a year on the chain gang. 

45. AC, August 26, 191 3, p. 1. 

46. SMN, August 26, 191 3, p. 1. Different newspapers gave 
varying figures for the size of the crowd. The Atlanta Georgian 
reported it as 3,500 in one edition and 4,000 in the next, August 

25, 1913, p. 1; The Marietta Journal and Courier also gave the 
figure of 4,000, August 29, 19 13, p. 2; the Associated Press figure 
was 2,000 plus and this was reported on August 26, 191 3, p. 1, in 
each of the following newspapers: New Orleans Times-Democrat, 
Columbia (S.C.) State, Chattanooga Daily Times, Raleigh (N.C.) 
News & Observer, and The Birmingham Age-Herald; the New 
York Call estimated the size of the crowd as 5,000, August 26, 
1913, p. 1. 

47. AC, August 26, 191 3, pp. 1, 4. 



192 notes: Pages 56-60 

48. AG, August 25, 191 3, p. 1; Bricker, The Shane Quarterly, 
IV (April, 1943), p. 90. 

49. The Marietta Journal and Courier, August 29, 191 3, p. 2; 
The Herald-] ournal (Greensboro, Ga.), August 29, 191 3, p. 4; 
SMN, August 26, 191 3, p. 6. 

50. AC, August 27, 191 3, p. 1. 

51. Ibid., p. 2. 

52. Cahan, flatter Von Mein Leben, V, 416. 

53. See pp. 84-85, below. 

54. DeWitt H. Roberts to Leonard Dinnerstein, February 14, 
1964; DeWitt H. Roberts, " Anti-Semitism and the Leo. M. Frank 
Case" (unpublished essay, files of the Anti-Defamation League, 
New York City, n.d., ca. 1953), p. 15. 

55. Louis Joughin and Edmund M. Morgan, The Legacy of 
Sac co and Vanzetti (Chicago, 1964), p. 196. 

56. Quoted in William H. Nichols, Southern Tradition and 
Regional Progress (Chapel Hill, i960), p. 300. 

57. TAC, August 26, 191 3, p. 2. The Atlanta race riot occurred 
in September, 1906. This is probably the "reign of terror in 1907" 
referred to in the final sentence of the quotation. 

58. AG, May 28, 19 13, p. 3; Minutes of the American Jewish 
Committee's Executive Commmittee (American Jewish Commit- 
tee Archives, New York), November 8, 191 3 (hereafter cited as 
Minutes); W. F. Eve to Governor John Slaton, May 27, 19 15 
(Prison Commission files, State of Georgia Archives, Atlanta) 
(hereafter cited as PC Records); interview of John Slaton by 
Samuel A. Boorstin, October 12, 1953 (files of Anti-Defamation 
League, New York City); DeWitt Roberts, "Anti-Semitism and 
the Leo M. Frank Case" (unpublished essay, ibid., n.d., ca. 1953), 
pp. 12-13; The Evening World (New York City), August 26, 
191 3, p. 6; Macdonald, The Kansas City Star, p. 3C; AC, October 
2 5» Wi* P* '4; Thompson, p. 31; Connolly, pp. 1 1, 18; The North 
Georgia Citizen (Dalton, Ga.), May 27, 1915, p. 4 {The North 
Georgia Citizen is frequently referred to as "The Dalton Citi- 
zen"); The New Castle [Pa.] Herald published the following item 
on June 22, 1915: an Atlantan, interviewed the previous day, said, 
"A mob as infuriated and unworthy of credence as that which 
clamored for the crucifixion of Jesus Christ . . . was in Atlanta 
during the Leo M. Frank trial and all hands were crying 'Hang 



notes: Pages 61-65 193 

the Jew!' " Clipping, John M. Slaton Scrapbooks, Georgia State 
Archives (Atlanta, Ga.). (Hereafter cited as Slaton Scrapbooks.) 
59. The New York Times, June 22, 191 5, p. 6; The North 
Georgia Citizen, May 27, 1915, p. 4. 



III. AN AMERICAN DREYFUS 



i. The Macon Daily Telegraph (Georgia), August 27, 191 3, 
Frank Papers. 

2. Minutes, I (November 11, 1906), 69. 

3. Yonathan Shapiro, "Leadership of the American Zionist 
Organization, 1897- 1930" (unpublished Ph.D. dissertation, Co- 
lumbia University, 1964), p. 26. 

4. Nathan Schachner, The Price of Liberty: A History of the 
American Jewish Committee (New York, 1948), pp. 5-6, 49-53; 
Shapiro, Ph.D. dissertation, pp. 21-22; Marshall Sklare, Conserva- 
tive Judaism (Glencoe, 111., 1955), pp. 163-64; Morton Rosen- 
stock, "Louis Marshall and the Defense of Jewish Rights in the 
United States" (unpublished Ph. D. dissertation, Columbia Uni- 
versity, 1963), p. 67. Rosenstock's work has been published under 
the title, Louis Marshall, Defender of Jewish Rights (Detroit, 
1966). 

5. Robert De Courcy Ward, "Immigration and the South," 
The Atlantic Monthly, XCVI (November, 1905), 611. See also 
AC, February 20, 1907, p. 1. 

6. Higham, Strangers in the Land, p. 113; Walter L. Fleming, 
"Immigration to the Southern States," Political Science Quarterly, 
XX (June, 1905), 282, 290; AC, February 20, 1907, p. 3; "Phases of 
Immigration," Manufacturers* Record, XLVII (June 15, 1905), 
497; The Independent, XI (August 17, 191 1), 395. 

7. Grantham, p. 157; Joseph D. Herzog, "The Emergence of 
the Anti- Jewish Stereotype in the United States" (unpublished 
thesis, Hebrew Union College, 1953), p. 42; Rowland T. Bertoff, 
"Southern Attitudes toward Immigration," The Journal of South- 
ern History, XVII (August, 195 1), 360. 

8. Higham, Strangers, p. 169; BertofF, The Journal of Southern 
History, XVII, pp. 343-44. The lynchings created an international 
incident, and President Benjamin Harrison even found it necessary 
to comment upon them in his State of the Union address to 



194 notes: Pages 65-68 

Congress in 1891. Charles H. Watson, "Need of Federal Legisla- 
tion in Respect to Mob Violence in Cases of Lynching of Aliens," 
Yale Law Journal, XXV (1916), 569, 577, 578; see also "Southern 
Peonage and Immigration," The Nation, LXXXV (December 19, 

'907)1 557- 

9. Bertoff, The Journal of Southern History, XVII, p. 344. 

10. Merle Curti, The Growth of American Thought (New 
York, 1943), p. 51. 

11. Lawrence H. Fuchs, The Political Behavior of American 
Jews (Glencoe, 111., 1956), pp. 37-40; Alfred O. Hero, Jr., The 
Southerner and World Affairs (Baton Rouge, 1965), p. 494. Hero 
has an excellent historical discussion in his chapter "Southern 
Jews." See also Bernard Postal, "Jews in the Ku Klux Klan," The 
Jewish Tribune, XCHI (September 14, 1928), 60. 

12. Henry Givens Baker, Rich's of Atlanta (Atlanta, 1953), p. 
225; Cahan, V, 353. 

13. John Higham, "Social Discrimination against Jews in Amer- 
ica, 1 830-1930," Publications of the American Jewish Historical 
Society, XL VII (1957-1958), 4; Nina Morais, "Jewish Ostracism 
in America," The North American Review, XCCCIII (1881), 
271; "The Jew's Daughter," Journal of American Folklore, XV 
(1902), 196. See also ibid., XIX (1906), 293-94; XXIX (1916), 
166; XXV (1922), 344; and XXXIX (1926), 212-13. Harper's 
New Monthly Magazine, XIX (1859), 860. 

14. E. Merton Coulter, The Confederate States of America 
(Baton Rouge, 1950), p. 226; Eaton, Freedom of Thought in the 
Old South (New York, 195 1), p. 233; Bertram Wallace Korn, 
American Jewry and the Civil War (Philadelphia, 195 1), pp. 158, 
177, 179; Rudolph Glanz, The Jew in the Old American Folklore 
(New York, 1961), p. 54. 

15. E. Merton Coulter, The South during Reconstruction 
(Baton Rouge, 1947), p. 203. 

16. Baker, p. 225. 

17. Harry Golden, Forgotten Pioneer (Cleveland, 1963), pp. 
66-67; Golden, A Little Girl Is Dead, p. 226; Golden, "Jew and 
Gentile in the New South: Segregation at Sundown," Commen- 
tary, XX (November, 1955), 403-4. 

18. The American Israelite, December 5, 1873, p. 6; January 28, 
1876, p. 6; November 15, 1878, p. 6; December 6, 1878, p. 5; 
March 12, 1879, p. 6. 



notes: Pages 68-69 195 

19. Higham, Strangers, pp. 92, 113; A. H. Tuttle, D.D., "The 
Jew," a sermon delivered in Baltimore, January 22, 1893. 

20. Horace M. Kallen, Judaism at Bay (New York, 1932), 
p. 149. 

21. J. F. Brown, "The Origin of the Anti-Semitic Attitude," 
in Isaque Graeber and Stewart Henderson Britt (eds.), Jews in 
a Gentile World (New York, 1942), pp. 134-35. 

22. Cash, p. 342; Broadus Mitchell and George Sinclair Mit- 
chell, The Industrial Revolution in the South (Baltimore, 1930), 
p. 273. 

23. Daniel Bell, "The Dispossessed," in The Radical Right, 
edited by Daniel Bell (Garden City, 1963), pp. 2-3; Eric Hoffer, 
The True Believer (New York, 1958), p. 92; Israel S. Wechsler, 
"The Psychology of Anti-Semitism," The Menorah Journal, XI 
(/pril, 1925), 164; Else Frenkle-Brunswick and R. Nevitt San- 
ford, "Some Personality Factors in Anti-Semitism," The Journal 
of Psychology, XX (1945), 277, 283, 285; Gordon W. Allport 
and Bernard M. Kramer, "Some Roots of Prejudice," ibid., XXII 
(1946), 29-30; Bruno Bettelheim, "The Dynamism of Anti-Semi- 
tism In Gentile and Jew," The Journal of Abnormal and Social 
Psychology, XLII (1947), 163; John Dollard, Neal E. Miller, 
Leonard Doob, O. H. Mowrer, and Robert R. Sears, Frustration 
and Aggression (New Haven, 1939), p. 1; David Riesman, "The 
Politics of Persecution," Public Opinion Quarterly, VI (Spring, 
1942), 45; Bruno Bettelheim and Morris Janowitz, Social Change 
and Prejudice (New York, 1964), pp. 54-55, 58, 278; Isaac A. 
Hourwich, "Is There Anti-Semitism in America?" The American 
Hebrew, XCIII (October 17, 191 3), 683-84; Gerhart Saenger, 
The Social Psychology of Prejudice (New York, 1953), pp. 1 10- 
11; David W. Petegorsky, "The Strategy of Hatred," The An- 
tioch Review, I (September, 1941), 377; Selma G. Hirsh, The 
Fears Men Live By (New York, 1955), pp. xi, xviii, 64-65; "Leo 
Frank," The New Republic, III (July 24, 1915), 300; Gustov 
Icheisen, "Fear of Violence and Fear of Fraud," Sociometry, VII 
(November, 1944), 378; Isaque Graeber, "An Examination of 
Theories of Race Prejudice," Social Research, XX (August, 
1953), 278, 281; Otto Fenichel, "Psychoanalysis of Antisemitism," 
The American Imago, I (March, 1940), 31; and Arnold Rose, 
"Anti-Semitism's Root in City-Hatred," Commentary, VI (1948) 
374- 



196 notes: Pages 69-70 

24. John Higham, "Anti-Semitism in the Gilded Age: A Re- 
interpretation," Mississippi Valley Historical Review, XLIII 
(March, 1957), 572. See also Nancy Carter Morse, "Anti-Semi- 
tism: a Study of It's Causal Factors and Other Associated Vari- 
ables" (unpublished Ph.D. dissertation, Department of Psychol- 
ogy, Syracuse University, 1947), p. 422. 

25. Woodward, Tom Watson, pp. 418-19. 

26. Albert I. Gordon, Jews in Transition (Minneapolis, 1949), 
p. 46; Stuart E. Rosenberg, The Jewish Community in Rochester, 
1843-192? (New York, 1954), pp. 1 18-19; E- A - Fischkin, "Jew- 
ish Problems in Chicago," The Reform Advocate, XXXII 
(January 26, 1907), 830; David Herman Joseph, "Some More of 
It, and Why," The Temple, I (December 10, 1909), 3; B. H. 
Hartogensis, "Religious Intolerance in Maryland," The Jewish 
Exponent, XLV (April 12, 1907), 8; Ida Libert Uchill, Pioneers, 
Peddlers, and Tsadikim (Denver, 1957), pp. 157-58. Indications 
of the growing anti-Semitism in the United States can also be 
garnered from Rev. F. F. Ellinwood, "The Duty of Christendom 
to the Jews," The Missionary Review of the World, III, New 
Series (November, 1890), 801-7; Josephus, "The Jewish Ques- 
tion," The Century, XLIII (1891-1892), 395-98; "Classical Anti- 
Semitism," The Nation, LXI (1895), 50-51; "A Gross Injustice," 
The Jewish Messenger, LXXVIII (July 12, 1895), 4; Major W. 
Evans Gordan, M.R, "Where Come Our Immigrants?" The 
World's Work, V (April, 1903), 3276-81; Richard Hayes Mc- 
Cartney, That Jew! (Chicago, 1905); "The Jews in the United 
States," The World's Work, XI (January, 1906), 7030-31; "Is a 
Dreyfus Case Possible in America?" The Independent, LXV 
(November 12, 1908), 1 105-8; Sydney Reid, "Because You're a 
Jew," ibid., LXV (November 26, 1908), 12 12-17; "Race Preju- 
dice against Jews," ibid., LXV (December 17, 1908), 1451-56; 
"Will the Jews Ever Lose Their Racial Identity?" Current Opin- 
ion, L (March, 191 1), 292-94; J. G. Wilson, "The Crossing of 
the Races," The Popular Science Monthly, LXXIX (November, 
191 1 ), 486-95; Nathum [sic] Wolf, "Are the Jews an Inferior 
Race?" The North American Review, CXCV (April, 191 2), 492- 
95; Burton J. Hendrick, "The Great Jewish Invasion," McClure*s 
Magazine, XXVIII (January, 1907), 307-21; Hendrick, "The 
Jewish Invasion of America," ibid., XL (March, 191 3), 125-65; 



notes: Pages 70-71 197 

Heywood Broun and George Britt, Christians Only: A Study in 
Prejudice (New York, 193 1), p. 57; Mark Twain, "Concerning 
the Jews," Harper's Magazine, XCIX (1899), 530, 532; and Joseph 
D. Herzog, "The Emergence of the Anti-Jewish Stereotype in 
the United States" (unpublished thesis, Hebrew Union College, 

i953)i P- 68. 

27. American Jewish Year Book, VII (1905-1906; Jewish year, 
5666), 235; David Herman Joseph, "Some More of It, and Why," 
The Temple, I (December 10, 1909), 3; The American Israelite 
(September 17, 1914), p. 1. 

28. Solomon Sutker, "The Jews of Atlanta: Their Social 
Structure and Leadership Patterns," (unpublished Ph.D. disserta- 
tion, Department of Sociology, University of North Carolina, 
1950), pp. 80, 81. 

29. AG, October 29, 191 3, Leo Frank Papers. 

30. Sutker, unpublished Ph.D. dissertation, pp. 30-31, 120, 143, 
159. 

31. Rainey, "The Race Riot of 1906 in Atlanta" (unpublished 
Master's thesis, Emory University, 1929), chap. 3; the Baltimore 
Morning Sun, November 23, 1914, p. 3. 

32. AC, March 4, 1907, p. 3; Garrett, II, 574; The Baltimore 
Morning Sun, November 23, 1914, pp. 1, 3. See also Thomas 
Gibson, "The Anti-Negro Riots In Atlanta," Harper* s Weekly, 
L (October 13, 1906), 1457-59. 

33. Higham, "Social Discrimination against Jews in America, 
1830-1930," PAJHS, p. 14. 

34. George Kibbe Turner, "The Daughters of the Poor," Mc- 
Clure's Magazine, XXXIV (November, 1909), 45-61, passim; S. S. 
McClure, "The Tammany izing of a Civilization," ibid., pp. 122-23; 
Maurice Fishburg, "White Slave Traffic and Jews," The American 
Monthly Jewish Review, IV (December, 1909), 4, 23; "The 
Trade in White Slaves," The American Review of Reviews, 
XXXIX (March, 1909), 371; The Immigration Commission (61st 
Cong., 2nd Sess., Senate Document 196, Serial 5662, 1909-1910), 
pp. 23-24. George Kibbe Turner, whose original revelations 
caused a public sensation, told a New York Grand Jury, under 
oath, "that he had no personal knowledge of the things he wrote." 
"It is by such worthless evidence that the impression has been 
created in the minds of the people that the traffic in girls is 



198 notes: Pages 72-73 

largely in the hands of Jews." "Jews in the White Slave Traffic," 
The Temple, II (February 25, 1910), 176. This stereotype was 
not restricted to Atlanta. In the 1920s an Ohioan told a sociolo- 
gist, "Why, a young girl is no longer safe on our country roads! 
They are picked up by men in automobiles. The Jews get them 
and sell them as white slaves. They have a regular price list and 
the business is carried on from New York to San Francisco." 
Frank Bohn, "The Ku Klux Klan Interpreted," The American 
Journal of Sociology, XXX (January, 1925), 388. 

35. The Baltimore Morning Sun, November 23, 19 14, p. 1. 

36. Lucian Lamar Knight, Reminiscences of Famous Georgians 
(2 vols.; Atlanta, 1907), I, 512; E. A. Ross, "The Hebrew of 
Eastern Europe in America," The Century Magazine, LXXXVIII 
(September, 19 14), 787. 

37. Hendrick, McClure's Magazine, XXVIII (January, 1907), 
314, 319-20; XL (March, 1913), 125, 126, 136, 153, 156, 158. 

38. Barbara Tuchman, The Proud Tower (New York, 1966), 
p. 173. 

39. Leslie Derfler, The Dreyfus Affair (Boston, 1963), vii-xvi. 

40. Beiliss is frequently spelled with only one "s." I have 
adopted the spelling used by Maurice Samuel in his book Blood 
Accusation (New York, 1966). 

41. Handbill, "Mendel Beilis Protest Meeting" (American Jew- 
ish Archives, Cincinnati); The New York Times, October 15, 
1913, p. 3; October 16, 1913, p. 16; October 17, 1913, p. 6; 
October 18, 191 3, p. 4; October 20, 191 3, p. 4; October 21, 191 3, 
p. 4; October 24, 191 3, p. 5; October 27, 191 3, p. 8; October 28, 
191 3, p. 10; October 30, 191 3, p. 10; Samuel, pp. 6-8, Chapter 19; 
"The 'Ritual Murder' Case in Kiev," The Outlook, CV (Novem- 
ber 1, 191 3), 113; "Russia's Christianity on Trial," The Literary 
Digest, XL VII (November 8, 191 3), 877. 

42. Rose A. Halpern, "The American Reaction to the Dreyfus 
Case" (unpublished Master's thesis, Department of History, Co- 
lumbia University, 1941), chapter 3; Louis Marshall to Edward 
Menkin, November 1, 191 3, Louis Marshall Papers (American 
Jewish Archives, Cincinnati). All letters to and from Louis Mar- 
shall are in this collection unless otherwise stated; therefore the 
expression "Marshall Papers" will not be repeated. Louis Marshall 
will be cited hereafter as LM. See also E. Lifshutz, "Repercussions 



notes: Pages 74-80 199 

of the Beilis Trial in the United States," Zion, XXVIII (1963), 
206-22. 

43. Hourwich, The American Hebrew, XCIII (October 17, 
1913), 684. 

44. Milton Klein to Louis Marshall, September 4, 191 3; David 
Marx to Louis Marshall, August 30, 191 3; Leonard Haas to Louis 
Marshall, August 30, 191 3. 

45. Cyrus Adler to Herman Bernstein, September 2, 191 3; E. B. 
M. Browne to Cyrus Sulzberger, September 21, 191 3, "The Leo 
Frank Correspondence Folder" (The American Jewish Committee 
Archives, New York City). 

46. LM to Irving Lehman, September 9, 191 3. 

47. Ibid.; LM to Milton Klein, September 9, 191 3; LM to 
Simon Wolf, September 27, 191 3. 

48. LM to Adolph Kraus, September 27, 191 3; LM to Irving 
Lehman, September 9, 191 3. 

49. Minutes, II (November 8, 1913), 180; LM to William 
Rosenau, December 14, 19 14. 

50. LM to Herbert Haas, December 27, 191 3. The initial ex- 
penses had been taken care of by Frank's immediate family and a 
well-to-do uncle. By the beginning of November, 191 3, they al- 
ready had spent about $30,000. Minutes, November 8, 191 3. 

IV. THE FIRST APPEAL 

i. Connolly, The Truth about the Frank Case, p. 16. 

2. Frank v. State, Motion for a New Trial, p. 125; A J, October 
4, 1913, p. 1. 

3. Ibid., pp. 1, 2; Frank v. State, 141 Georgia 283 (1914). 

4. AJ, October 21, 191 3, p. 1. 

5. AC, October 22, 191 3, p. 9. 

6. AC, October 26, 19 13, p. 1. 

7. AC, October 28, 191 3, p. 1. 

8. Quoted in AG, November 1, 191 3, p. 1, Frank Papers. 

9. Herbert Haas to LM, October 31, 191 3. See Appendix A. 

10. AG, n.d. (November 1, 191 3?), Frank Papers. 

11. Way cross-Herald, November 5, 19 13, Frank Papers; 
Greensboro Herald- Journal, November 7, 19 13, p. 6; "The Real 
Case," Southern Ruralist, XX (January 15, 1914), 20. Poor health 



200 notes: Pages 81-84 

prevented Judge Roan from seeking renomination in 19 14. A J, 
May 13, 1914, p. 5. 

12. J.J. Barge to Georgia Prison Commission and Governor 
John Slaton, May 31, 19 15, PC Records. See also Allen Lumpkin 
Henson, Confessions of a Criminal Lawyer (New York, 1959), 
p. 65. A Georgian, familiar with the facts in the case, has written, 
"Friends of Judge Roan . . . felt that he expected an acquittal by 
the jury, and would have granted a new trial had he not been sure 
that the Supreme Court would do so." DeWitt H. Roberts to 
Leonard Dinnerstein, February 19, 1964. 

13. AJ, December 11, 1913, pp. 1, 7; December 15, 1913, pp. 1, 
19, 20; AC, December 16, 191 3, pp. 1, 4, December 17, 191 3, pp. 
1, 5. See Appendix A. 

14. AC, December 17, 1913, p. 1. Felder seemed less concerned 
with the legality of Roan's action than with winning his case. 
He said nothing about the precedents covering cases where the 
trial judge did so certify. 

15. The justices of the Georgia Supreme Court at that time 
were William H. Fish (Chief Justice), Beverly D. Evans, Joseph 
Henry Lumpkin, Marcus W. Beck, Samuel C. Atkinson, and 
Hiram Warner Hill. Justices Fish and Beck dissented from the 
majority. 

16. Frank v. State, 141 Georgia 246-47, 281, 283. 

17. Ibid., pp. 253-54, 256, 260. 

18. Ibid., pp. 266-67, 284. 

19. Ibid., pp. 285-307. 

V. TOM WATSON AND WILLIAM J. BURNS 

i. Burns had been brought into the case a year earlier when a 
public subscription had been raised to pay for the famous detec- 
tive's services in helping Atlanta find the culprit. After Conley's 
affidavits, however, toward the end of May, 191 3, Solicitor Dor- 
sey informed the Burns agency in the city that its services would 
no longer be needed. The Burns agent, who had investigated the 
murder for about two weeks, had announced in May, 191 3, that 
he, too, believed Frank guilty. But William J. Burns had never 
come to Atlanta, nor did he have any hand in the investigation 
undertaken by his agents in 191 3. Once Dorsey had informed his 



notes: Pages 85-91 201 

agency that its services would no longer be necessary, the Burns 
people dropped all association with the case. Therefore when 
William J. Burns was again solicited, in February, 19 14, he felt 
free to accept the assignment from the defense. See AC, May 27, 

191 3, pp. 1, 2. 

2. AC, February 21, 1914, p. 1. 

3. Southern Ruralist, March 15, 1914, p. 21. 

4. Quoted in AG, February 22, 19 14, p. 1; Frank Papers. 

5. The New York Times, February 26, 19 14, p. 1. 

6. Quoted in AC, February 27, 19 14, p. 2. 

7. A J, March 4, 19 14, p. 1. At the trial, however, the motor- 
man who had conducted the trolley that Mary Phagan had come 
to town on, said he also knew George Epps, Jr. and that the boy 
had not been on the trolley with Mary Phagan. Brief of the Evi- 
dence, p. 84. 

8. AC, February 24, 1914, p. 7; March 13, 1914, p. 1; March 
15, 1 91 4, p. 2 A; March 28, 19 14, p. 1. See also affidavits in Frank 
Papers. 

9. AJ, March 5, 1914, pp. 1, 2; AC, May 4, 1914, p. 1; AJ, May 

h l 9 l <h P- 1. 

10. AC, March 15, 1914, p. 1; April 19, 1914, p. 1; AJ, April 19, 

1914, p. 1. 

11. AJ, May 1, 1914, p. 22; May 3, 1914, p. 1; May 4, 1914, p. 
1; Connolly, p. 65; Macdonald, The Kansas City Star, p. 2C. 

12. An "extraordinary motion" was needed to place Frank's 
case before the Georgia courts again because the ordinary pro- 
cedures had already been exhausted. The "extraordinary motion" 
was based on new information, not available at the time of the 
trial. 

13. The New York Times, March 9, 1914, p. 1; March 17, 1914, 
p. 3; The Washington Post, March 9, 191 5, p. 5; A J, March 8, 
1914, p. 1; March 9, 1914, p. 2. 

14. Henry A. Alexander, p. 7. 

15. L. O. Bricker, "A Great American Tragedy," The Shane 
Quarterly, IV (April, 1943), 91. 

16. Macdonald, The Kansas City Star, p. 2C; Connolly, p. 88; 
The New York Times, March 15, 1914, HI, 10; Cahan, V, 502. 

17. LM to Leonard Haas, March 25, 1914. 

18. The New York Times, October 26, 19 14, p. 1. 



202 notes: Page 92 

19. LM to Adolph Ochs, January 8, 1914; LM to Judge Julian 
Mack, March 17, 19 14. 

20. Tom Watson would eventually remind his readers that the 
Northern periodicals leading the fight to exonerate Frank — Puck, 
The New York Times and The Evening World (New York) — 
were all owned by Jews. "What is the purpose of this continued 
and systematic crusade in behalf of one convicted Jew whose 
connections command unlimited wealth?" Watson later asked. 
And then he added, touching on one of the themes he frequently 
made reference to when discussing the influence of the Jews: "The 
Frank case is enough to depress the most hopeful student of the 
times. It has shown us how the capitalists of Big Money regard 
the poor man's daughter. It has shown us what our daily papers 
will do in the interest of wealthy criminals. It has shown us how 
differently the law deals with the rich man and the poor." The 
Jeffersonian, December 5, 19 14, pp. 1, 8. 

2 1. Albert D. Lasker's secretary, C. M. Langan, to Julius Rosen- 
wald, December 10, 191 3. Julius Rosenwald Papers, University of 
Chicago; hereafter cited as Rosenwald papers. Leo Frank to Al- 
bert D. Lasker, December 18, 191 3, ibid.; Albert D. Lasker to 
Julius Rosenwald, June 26, 19 15, ibid.; John Gunther noted that 
over a two-year period Lasker contributed $100,000 out of his 
own pocket. Taken at the Flood (New York, 1961), pp. 82-83. 
Harry Golden, on the other hand, estimated that Lasker and his 
father had spent $160,000 between them, and that an uncle of 
Frank's had spent $50,000 (A Little Girl Is Dead, p. 230); on 
June 19, 191 5, Herbert Hass acknowledged that "Mr. Frank's de- 
fence [sic] for the past fifteen months has been assisted financi- 
ally by and through Mr. A. D. Lasker, of Chicago." Hass to Jacob 
Schiff, Jacob SchifF Papers, American Jewish Archives; cited 
hereafter as SchifF Papers. People such as Louis Marshall, Jacob 
SchifF, and Julius Rosenwald also contributed substantial sums to 
Frank's cause. If the estimate is based on the entire list of con- 
tributors, it seems conservative to say that at least a quarter of a 
million dollars was spent in order to free Leo Frank. Albert D. 
Lasker to Herbert Hass, April 20, 19 14, SchifF Papers; SchifF to 
Herbert Hass, June 21, 191 5, ibid.; Julius Rosenwald's secretary, 
"WCG," to Julius Rosenwald, March 9, 1914, March 13, 1914, 
March 14, 1914, Rosenwald Papers; Albert Lasker to Louis Wiley, 
April 20, 19 14, April 22, 19 14, SchifF Papers. 



notes: Pages 92-96 203 

22. Gunther, p. 83; "WCG" to Julius Rosenwald, March 14, 
1 9 14, Rosenwald Papers; Julian Mack to LM, March 16, March 
19, 1914. 

23. LM to Siegmund B. Sonneborn, March 13, 1914; Siegmund 
B. Sonneborn to LM, April 2, 1914. 

24. Clipping, April 18, 19 14, Boston Herald-Traveler Library; 
The American Israelite, May 21, 19 14, p. 1; The Baltimore Morn- 
ing Sun, March 17, 1914, p. 8; Arkansas Gazette, April 15, 1914, 
Richmond Times-Dispatch, March 24, 19 14, The Mobile Tribune, 
March 21, 1914, Frank Papers. The Salt Lake City Tribune 
thought it "somewhat remarkable that the conviction was ob- 
tained on the negro's testimony in the first place." Clipping, 
March 19, 19 14, Frank Papers. 

25. The Macon News, March 9, 19 14, p. 1 1, Frank Papers; AC, 
February 26, 19 14, p. 4. 

26. AJ, March 10, 191 4, p. 8. 

27. The Greensboro Herald- Journal, March 20, 1914, p. 8; The 
North Georgia Citizen, March 12, 19 14, p. 4. 

28. A J, March 15, 19 14, pp. 5, 6; Macdonald, The Kansas City 
Star, p. 3C. A Georgia woman wrote to a Northern newspaper, 
u No one has yet dared publicly to express his belief in Frank's 
innocence without being accused of having been bought with 
Jewish money," The New York Times, November 28, 19 14, p. 
5. Berry Benson also indicated at the beginning of his presenta- 
tion, "I have not received one cent from Frank's people, nor 
from anybody. I make this statement to anticipate the low jibe 
of any vicious or crazy person, or any person both crazy and 
vicious, who may say I am in the pay of the Jews." "Five Argu- 
ments in the Frank Case" (n.p., n.d., ca. June, 19 14), p. 1. 

29. Woodward, Tom Watson, pp. 176, 177, 187-89, 223, 332, 
348-49, 357, 371, 402, 408, 419; Woodward, Origins of the New 
South, pp. 188, 257, 262; Lucian Lamar Knight, A Standard His- 
tory of Georgia and Georgians (6 vols.; Chicago, 1917), II, 1 127; 
Mary Richards Colvin, "Hoke Smith and Joseph M. Brown, Po- 
litical Rivals" (unpublished M.A. thesis, University of Georgia, 
1958), p. 70. See also Gustavus Myers, History of Bigotry in the 
United States (New York, 1943), p. 261. 

30. Mercer G. Evans, "The History of the Organized Labor 
Movement in Georgia" (unpublished Ph.D. dissertation, Depart- 
ment of Economics, University of Chicago, 1929), p. 291; Clare 



204 notes: Pages 96-99 

de Graffenried, "The Georgia Cracker in the Cotton Mills," The 
Century Magazine, XLI (February, 1891 ), 477-78, 495, 496; Ward 
Greene, Star Reporters and 34 of Their Stories (New York, 
1948), p. 132; Oscar and Mary Handlin, Danger in Discord (New 
York, 1948), pp. 22-23; Woodward, Tom Watson, p. 442. 

31. Woodward, Tom Watson, p. 248. 

32. Louis Turner Griffith and John Erwin Talmadge, Georgia 
Journalism: 1763-1950 (University of Georgia Press, 195 1), p. 
138; Colvin, "Hoke Smith and Joseph M. Brown, Political Ri- 
vals" (unpublished M.A. thesis, University of Georgia, 1958), p. 
16. 

33. Woodward, Tom Watson, p. 437; Griffith and Talmadge, 
p. 139; Garrett, II, 625-26; Steed, p. 239. 

34. The Jeffersonian, March 19, 19 14, pp. 1, 8. Albert Lasker 
acknowledged privately, 'if it had not been for the energy, in- 
fluence and money expended, Frank — innocent though he is — 
would have been hung long ago." Lasker to Louis Wiley, April 
20, 1 9 14, SchifF Papers. 

35. The Jeffersonian, April 2, 1914, p. 2. 

36. Ibid., May 7, 1914, p. 5; May 14, 1914, p. 3. Praiseworthy 
letters on this subject were published in every issue from April 
16 through May 28, 19 14. No unfavorable comments were 
printed. 

37. "Tom Watson fell on the Frank case with the lust of a 
starved tiger and the cunning of a political opportunist. By the 
time . . . national names . . . were blazoned among Frank's sup- 
porters Watson was feeding his 'woolhats' a diet of 'Wall Street 
plot, Jewish gold and Yankee meddlers' in language careless of 
truth or decency and always inflammatory." Greene, p. 132. 

38. The Jeffersonian, April 9, 19 14, p. 1. Louis Wiley wrote 
LM: "While I can understand the clamor and mob feeling which 
led to the unjust verdict in the Frank case, I am strongly inclined 
to believe that the prisoner was not adequately defended. If he 
had been it seems to me the dreadful situation now before us 
might have been prevented." April 3, 19 14. 

39. The Jeffersonian, April 9, 19 14, p. 8; April 30, 19 14, p. 10. 

40. Ibid., April 9, 1914, p. 1; May 7, 1914, p. 1; April 23, 1914, 
p. 10. 

41. Quoted in The Jeffersonian, May 28, 19 14, p. 5. 



notes: Pages 100-104 205 

42. A J, February 18, 19 14, p. 9. 

43. Herbert Asbury, "Hearst Comes to Atlanta," The Ameri- 
can Mercury, VII (January, 1926), 91; Steed, p. 239; Knight, A 
Standard History of Georgia, II, 1 165. 

44. A J, February 19, 19 14, p. 1; March 16, 19 14, p. 1; March 
18, 19 14, p. 1; AG, March 22, 19 14, Frank Papers, Box 693; AC, 
March 20, 1914, p. 2; April 5, 1914, p. 1. 

45. Lasker to Herbert Hass, April 20, 19 14, Schiff Papers. 

46. AC, May 2, 1914, pp. 1, 2. 

47. AC, May 2, 19 14, p. 2. 

48. AJ, April 12, 1914, p. 3. 

49. Quoted in AC, April 12, 1914, p. 2 A. 

50. Quoted in A J, April 24, 19 14, p. 1. See also The New York 
Times, April 25, 19 14, p. 8. 

51. AJ, April 28, 1914, p. 20. 

52. The New York Times, April 25, 1914, p. 8; April 27, 1914, 
p. 10. 

53. AC, April 26, 1914, p. 1. 

54. Quoted in AC, April 26, 1914, p. 3. 

55. AJ, April 26, 1914, p. 7; supra, pp. 53-54. 

56. AC, April 25, 1914, p. 3. In June, 1915, he inexplicably 
changed his mind. At that time he admitted writing the letters 
but claimed that someone else must have put in the vulgar ex- 
pressions because he had not done so. AJ, June 14, 191 5, p. 1. 
None of the Atlanta papers commented about Conley's admis- 
sion in 19 1 5. 

57. AJ, April 24, 19 14, p. 8; AC, May 6, 19 14, p. 5; The New 
York Times, April 25, 1914, p. 20. Frank's attorneys maintained 
at the trial that the elevator had not been used to take the body 
to the basement; the prosecution argued otherwise. Lawson (ed.), 
X, 210. 

58. AJ, May 5, 1914, p. 2; AC, May 6, 1914, p. 5; The New 
York Times, May 6, 19 14, p. 3. 

59. Herbert Haas to A. D. Lasker, April 30, 19 14, May 2, 1914, 
Rosenwald Papers. 

60. The New York Times, April 25, 1914, p. 8; May 1, 1914, 
p. 5; AC, April 30, 1914, p. 5; May 1, 1914, p. 1; Haas to Lasker, 
April 30 and May 2, 19 14, Rosenwald Papers. 

61. The New York Times, May 6, 1914, p. 3; AC, May 2, 1914, 



2o6 notes: Pages 105-109 

p. 2; May 4, 1914, p. 1; May 5, 1914, p. 10; May 6, 1914, p. 1; 
AJ, May 5, 1914, p. 2. 

62. AJ, May 2, 1914,^ 3. 

63. Herbert Haas to Lasker, May 2, 19 14, Rosenwald Papers. 

64. AJ, May 6, 1914, p. 1; AC, June 7, 1914, p. 1. In 191 3 the 
Georgia General Assembly created a new judgeship for the At- 
lanta circuit to which Judge Benjamin H. Hill was appointed. At 
the same time, Judge Roan, who had presided at Frank's trial and 
had denied the motion for a new trial, was transferred to the State 
Court of Appeals. Therefore the subsequent appeals in the Atlanta 
circuit were heard by Judge Hill. Knight, A Standard History of 
Georgia, II, 1135-36. 

65. LM to the Messrs. Hass & Hass, April 13, 1914. 

66. LM to Julian W. Mack, March 17, 19 14. 

67. Burns's connection with the case did, in fact, have dire con- 
sequences for Frank. Louis Marshall wrote to an editor of a New 
York newspaper, "It is nevertheless the fact, that people of the 
highest standing in Georgia, some of whom prior to the advent 
of Burns were strong believers in Frank's innocence, have turned 
against him and have deduced an argument of guilt from the very 
fact that Burns has been identified with the case. It is also a very 
significant fact that, since that time, all people who are connected 
with trade unions and the working classes generally, have been 
more vituperative in their animosity to Frank than ever before." 
LM to Keats Speed, January 13, 19 15. LM to Louis Wiley, May 
5, 19 14, Schiff Papers. 

68. LM to Louis Wiley, May 5, 1914, Schiff Papers. 

69. Samuel Untermyer to Louis Wiley, May 5, 19 14, ibid. 

VI. WISDOM WITHOUT JUSTICE 

1. Frank v. State, 83 Southeastern Reporter 234. 

2. The sixth justice was ill and did not participate in the deci- 
sion. 

3. 83 Southeastern Reporter 654. 

4. LM to Leonard Haas, November 14, 19 14. 

5. Writ of error: a writ issued for an appeals court to the judge 
of court of record requiring him to remit the record in order that 
an examination may be made of certain errors alleged to have been 
committed so that judgment may be reversed, corrected, or af- 



notes: Pages 1 09-110 207 

firmed. Frank's counsel wanted the Georgia Supreme Court to 
grant the writ of error so that the United States Supreme Court 
would review the evidence and remand the case back to the Geor- 
gia courts for another trial. Even though technically the lawyers 
asked to have the verdict set aside, in reality they did not want, 
or expect, the judges to do this. But they did expect a new trial. 
Louis Marshall and Albert Lasker agreed that "if a new trial were 
to take place, with the entire nation looking on and with news- 
paper correspondents from all parts of the country in attendance, 
there would be no likelihood of a conviction, especially in view 
of the fact that the facts of the case are now much better under- 
stood than they were at the time of the trial." LM to Lasker, 
January 30, 19 15. 

6. AC, November 21, 1914, p. 4. 

7. LM to Chief Justice Edward D. White, November 24, 19 14, 
Reznikoff (ed.), Louis Marshall: Champion of Liberty (Philadel- 
phia, 1957), I, 300. 

8. AJ, November 26, 19 14, p. 4. 

9. AC, November 24, 19 14, p. 1. 

10. Quoted in AC, November 27, 19 14, p. 5; see also The New 
York Times, November 27, 1914, p. 1. 

11. AJ, December 7, 1914, p. 1. 

12. Reprinted in The Neiv York Times, December 1, 19 14, p. 7. 

13. Reprinted in ibid., December 2, 1914, p. 8. The New York 
Times reprinted other newspaper comments on the case regularly. 
Most newspaper commentary seemed to express the feeling that 
Frank did not have a fair trial and that some way of obtaining 
one should be found. There are literally hundreds of clippings 
to this effect scattered among the Frank Papers, Boxes 694-701. 
Albert Lasker wrote to Jacob Billikopf, of Kansas City, Mo.: 

"Outside of the State of Georgia, the press of the United States, 
including the leading papers of every city in the South, save 
Georgia, are editorially not only commenting on the case, and 
agitating a public sentiment for the unfortunate Frank, but 
daily hundreds of papers, including the leading Southern papers, 
are editorially crying that Frank's execution would amount to 
judicial murder, and that in this case, the State of Georgia is 
more at bar than Fr^nk. I do not exaggerate when I state that 
hundreds of such editorials are appearing daily." 
December 28, 19 14, Rosenwald Papers. 



208 notes: Pages 110-113 

14. Writ of habeas corpus: to get a person released from un- 
lawful punishment. Only issue under consideration is whether 
prisoner's liberty has been denied without due process of law. 

15. LM to Meier Steinbrink, December 19, 19 14, Rezinkoff 
(ed.), Louis Marshall, I, 300, 303. 

16. The New York Times, December 18, 19 14, p. 6. 

17. The New York Times, December 29, 19 14, p. 1; AJ, De- 
cember 31, 1914, p. 5. 

18. The Scranton (Pa.) Tribune-Republican, December 30, 
1 9 14, Frank Papers. 

19. Reprinted in The American Jewish Review, IV (January, 
1915), 2, Frank Papers. 

20. Copy of letter from LM to Haas (Leonard or Herbert not 
stated), December 24, 19 14, Rosenwald Papers. 

21. LM to A. D. Lasker, January 30, 19 15. 

22. LM to A. D. Lasker, January 30, 1915, February 5, 1915, 
LM to Henry A. Alexander, February 19, 191 5. 

23. Reznikoff (ed.), Louis Marshall, I, 304-11, passim; The 
New York Times, February 21, 191 5, II, n. 

24. Quoted in The New York Times, February 27, 19 14, p. 
8. 

25. The majority included Edward D. White, Chief Justice, 
and Associate Justices Joseph McKenna, William R. Day, Willis 
Van Devanter, Joseph R. Lamar, Mahlon Pitney, and James C. 
McReynolds. Justices Holmes and Charles Evans Hughes dis- 
sented. 

26. Frank v. Mangum, 237 U.S. 326, 333, 343, 344, 345 (1915). 

27. Ibid., pp. 347, 349. "In Frank v. Mangum, Hughes worked 
with Holmes on his dissenting opinion, and in circulating it 
Holmes wrote a note saying, *I think it would be fairer to say 
(if you agree) that you and I think the judgment should be re- 
versed and to put we for I all through.' The opinion came down 
that way after Hughes had replied, *I shall be proud to be as- 
sociated with you in this opinion.' " Merlo J. Pusey, Charles Evans 
Hughes (2 vols.; New York, 195 1), I, 289. 

28. Letter from A. B. Macdonald to Leo Frank, Slaton, Brandeis. 

29. San Francisco Chronicle, April 21, 1915, p. 18; see also 
Washington Post, April 21, 19 15, p. 6; Galveston Daily News, 
April 23, 1915, p. 4. 



notes: Pages 113-117 209 

30. Muskegee Democrat, April 29, 191 5, Frank Papers. LM to 
Judge Julian Mack, April 24, 19 15. Chief Justice White later in- 
sisted that he knew not one word of the evidence in the case, 
nor anything about its merits, and that the question of guilt or 
innocence did not come before him at all, "but solely the dry, 
technical question ... as to whether there was such Federal 
question involved as to require the Federal Courts to wrest the 
case from the State tribunals." John M. Slaton, "Governor Slaton's 
OWN Defense in the Frank Case," The New York World, July 
4, 191 5, editorial section, p. 1. 

VII. COMMUTATION 

1. AC, October 3, 1914, p. 1; October 4, 1914, p. 1. The Jeffer- 
sonian, October 8, 19 14, p. 9. 

2. The Baltimore Sun, November 19, 19 14, p. 1; November 23, 
1914, p. 3; C. P. Connolly, "The Frank Case," Collier's, LIV (De- 
cember 19, 1914), 6-7; LIV (December 26, 1914), 18-20; Mac- 
donald, The Kansas City Star, January 17, 1915, pp. 1C-3C; Ar- 
thur Train, "Did Leo Frank Get Justice?" Everybody's, XXXII 
(March, 191 5), 315-17. Arthur Brisbane also investigated the case 
for the Hearst newspapers, and the New York World and Chi- 
cago Tribune sent reporters to Atlanta for further information. 
The New York Times, February 2, 19 15, p. 6. 

3. The Baltimore Sun, November 19, 19 14, p. 1; Collier's, De- 
cember 19, 19 14, p. 6; The Kansas City Star, January 17, 191 5, 
pp. 1C-3C; Everybody's, March, 19 15, pp. 315-17. For the view 
of a Georgian who believed Frank guilty and who was exceed- 
ingly familiar with the facts, see Appendix D. 

4. The Baltimore Sun, November 26, 19 14, p. 4. The Pittsburgh 
Index, December 26, 1914, Duluth Herald, December 17, 19 14, 
Frank Papers. There are more than one hundred clippings among 
the Frank papers expressing these ideas. See also opinions of other 
American newspapers reprinted in The New York Times, De- 
cember 1, 2,4,9, 11, 12, 13, 15, 22, 23, 1914. 

5. The Neiv York Times, December 10, 1914, p. 6; The Au- 
gusta Chronicle, December 27, 19 14, p. 3. Then there are the fol- 
lowing newspaper clippings from small town Georgia papers, all 
from the Frank Papers: Brunswick News, November 29, 19 14, 



210 notes: Pages 117-119 

Way cross Journal, January 16, 19 15, and the Macon Telegraphy 
January 16, 19 15. 

6. LM to Leo Frank, January 30, 19 15. 

7. None of the letters that I have seen spell out the reasons it 
was thought that Slaton would be more likely to commute. LM 
to Herbert Haas, May 7, May 21, May 28, 19 15. 

8. The New York Times, April 22, 191 5, p. 1. 

9. William Howard Taft to Julius Rosenwald, May 17, 191 5; 
Julius Rosenwald to Senator L. Y. Sherman, May 18, 19 15; Sena- 
tor L. Y. Sherman to Julius Rosenwald, May 21, 1915; Rosen- 
wald Papers. Simon Wolf to Woodrow Wilson, June 10, 191 5; 
William J. Burns to Joseph P. Tumulty, May 29, 19 15; Wood- 
row Wilson Papers, Library of Congress (Washington, D.C.), 
Series VI, File 3658. LM to Herbert Haas, LM to Harry Frieden- 
wald, both May 15, 19 15. Also LM to Daniel Guggenheim and 
to A. D. Lasker, both May 10, 191 5. LM to Herbert Haas, May 
21, 1915, May 28, 1915. 

10. Harvey Judson, President of the University of Chicago, to 
the Georgia Prison Commission, May 9, 19 15; Charles R. Crane 
to Georgia Prison Commission, May 29, 1915, PC Records. There 
are thousands of other letters expressing this sentiment in the PC 
Records. The letters to Governor John M. Slaton are scattered in 
three different places: the records of the Georgia Prison Com- 
mission, and the John M. Slaton Papers, both in the Georgia 
State Archives (Atlanta); and Slaton, Brandeis. See also LM to 
Herbert Hass, May 28, 19 15; Elmer Murphy to Leo Frank, May 1, 
19 1 5, Slaton, Brandeis; Victor Morgan to Leo Frank, April 29, 
191 5, ibid.; Harry Levenson to Louis Brandeis, May 21,1915, Louis 
D. Brandeis papers, file 21 891, located in the law offices of Nutter, 
McClennen and Fish, Boston; John M. O'Connor to Julius Rosen- 
wald, May 18, 191 5, Rosenwald papers; Louisville Herald, May 
17, 1915, Frank Papers; and AC, May 11, 1915, p. 1; May 16, 
1915, p. 1; May 24, 1915, p. 5; May 28, 1915, p. 7; May 29, 1915, 
p. 1; May 30, 1915, p. 5; May 31, 1915, p. 5; June 1, 1915, p. 4; 
AJ, May 29, 19 15, p. 2; The New York Times, May 15, 191 5, 
p. 11; May 18, 1915, p. 6; May 25, 1915, p. 6; May 29, 1915, p. 
12; May 30, 1915, II, 14; June 5, 1915, p. 6; Woodward, Tom 
Watson, p. 436; "Frank's Prophesy of Vindication Comes True 
10 Years After Georgia Mob Hangs Him as Slayer," The Jewish 



notes: Pages 1 19-122 211 

Advocate, XLII (October 18, 1923), 20. One of the reasons for 
Chicago's great concern over Leo Frank may have been because 
of the influence of Albert Lasker, Julius Rosenwald, and the B'nai 
B'rith, all of whom lived, or made their main headquarters, in 
the city. 

11. AC, May 27, 1915, p. 1; TAC, September 28, 1915, p. 6. 

12. AJ, May 23, 1915, sporting section, p. 4; AG, May 29, 
1915, Frank Papers; TAC, June 9, 1915, June 10, 1915, ibid.; 
Brunswick News, June 17, 19 15, ibid., The North Georgia Citizen, 
May 27, 19 1 5, p. 4. 

13. The Jeffersonian, June 10, 191 5, p. 3. 

14. Woodward, Tom Watson, p. 442; [a follower] to Tom 
Watson, June 25, 1915, Slaton, Brandeis. 

15. The Jeffersonian, June 3, 19 15, pp. 3, 4. 

16. Estimates of the June 5 crowd varied from 2,000 to 8,000; 
TAC, June 9, 191 5, Frank Papers; The Jeffersonian, June 17, 
1915, p. 3; July 15, 1915, p. 6; The New York Times, June 6, 
19 1 5, II, 4. See also The Dalton Citizen, June 10, 19 15, p. 4; AJ, 
June 13, 1915, pp. 1, 10; AC, June 4, 1915, p. 1; June 13, 1915, 
p. 5 A; The New York Times, June 5, 191 5, p. 6; American Jewish 
Review, n.d., clipping, John M. Slaton's "Miscellaneous" Scrap- 
book, Slaton Papers, Georgia Archives; Franklin Bliss Synder, 
"Leo Frank and Mary Phagan," The Journal of American Folk- 
lore, XXXI (1918), 264; see Appendix B. 

17. According to Georgia law, the Prison Commission had ad- 
visory powers only: the final decision rested with the Governor. 

18. The impact of the letter was offset, however, by the fact 
that in 191 3, the same graphologist, Albert Osborn, had informed 
Hugh Dorsey that the notes might have been written with the as- 
sistance of an intelligent person. Albert Osborn to Prison Commis- 
sioners, May 17, 19 1 5, May 18, 19 15, PC Records. The New York 
Times, May 27, 19 15, p. 4. 

19. L. S. Roan to Messrs. Rosser and Brandon, and R. R. Arnold, 
December, 1914 (no specific date), PC Records. AC, June 1, 1915, 
p. 1. 

20. Ibid., pp. 1, 4. 

21. AC, June 10, 1915, pp. 1, 2. 

22. TAC, June 10, 19 15, Frank Papers. 

23. Ibid. 



212 notes: Pages 122-129 

24. Knight, A Standard History of Georgia, II, 1 168. 

25. Georgia's antiquated county unit system gave dispropor- 
tionate power to the rural counties of the state. With 159 coun- 
ties, each allowed a minimum of one vote, none allowed more 
than three votes, a minority of the population could select state- 
wide candidates. V. O. Key, Jr., Southern Politics in State and 
Nation (New York, 1950), p. 119. 

26. Knight, A Standard History of Georgia, II, 1125, 1126, 
1 128, 1 164; Woodward, Tom Watson, pp. 439-40; John Temple 
Graves, "The New Governor of Georgia," Cosmopolitan Maga- 
zine, LV (August, 191 3), 335-37. 

27. Woodward, Tom Watson, p. 443. 

28. Memo of conversation held by Samuel Boorstin with John 
M. Slaton, October 12, 1953, Anti-Defamation League Files, New 
York City. Conley's lawyer had also made this remark publicly; 
see pp. 194-95. 

29. See Appendix C. 

30. The New York World, July 4, 19 15, editorial section, p. 1. 

31. Ibid.; Garrett, II, 626; A. L. Henson [Essay — no title], "Leo 
Frank Folder," Files of the Anti-Defamation League, New York 
City; Powell, p. 292; Knight, A Standard History of Georgia, II, 
1 168. 

32. AC, June 21, 1915, extra, p. 1; AC, June 22, 1915, pp. 1, 
2,9. 

33. AC, June 21, 1915, extra, p. 1. 

34. AJ, June 14, 191 5, p. 1. An examination of these letters led 
Slaton to observe that Jim Conley seemed more of a pervert than 
the man he had accused. No explanation was given for Conley's 
sudden decision to admit that he had written the letters. These 
letters are deposited in the Georgia State Archives. They are also 
in Leonard Dinnerstein's "The Leo Frank Case" (unpublished 
Ph.D. dissertation, Columbia University, Department of History, 
1966), the Appendix. 

35. AJ, June 21, 1915, pp. 1, 3, 4; The New York Times, June 
22, 1915, p. 6. 

36. Quoted in The Times-Picayune (New Orleans), June 27, 
1915, p. 1. 

37. Powell, p. 289. In a letter written in 196 1, John M. Slaton, 
Jr., Governor Slaton's nephew, observed: "During the last days 



notes: Pages 129-132 213 

of my uncle's, Governor John M. Slaton's, life, he expressed to 
me the thought that the unfolding of time had established the in- 
nocence of Leo Frank." John M. Slaton, Jr., to Harold Marcus, 
January 5, 196 1; copy among the Leo Frank letters, Brandeis Uni- 
versity. 

38. See Appendix C. 

39. The editors of The Atlanta Constitution made no editorial 
comment about either Slaton or the commutation. 

40. Slaton kept scrapbooks of the newspaper reaction to the 
commutation. He had two books, about 15" X 27", with news- 
paper clippings, arranged alphabetically by state, and within each 
state, by city. One book is marked, "Alabama to North Carolina" 
and the other "Ohio to Wyoming and Miscellaneous." Then there 
are other scrapbooks, one marked "Georgia Favorable," one 
marked "Georgia Critical," and one marked "Miscellaneous" 
which have additional newspaper clippings. By going through 
these books one can see that an overwhelming majority of news- 
papers did support Slaton's action. In Georgia the newspapers that 
opposed the Governor were primarily rural. There are also letter- 
books, which contain letters from all over the country, praising 
and condemning the commutation. Again, most of the commen- 
tary is favorable, and, again, all letters are arranged alphabetically, 
first by state and then by city within the state. In this collection 
all states seem to be represented except Arkansas. All scrapbooks 
and letterbooks are among the Slaton Papers, Georgia State Ar- 
chives. 

41. Quoted in The American Jewish Review, IV (July, 19 15), 
2, Frank Papers. 

42. Knight, A Standard History of Georgia, II, 11 69. 

43. SMN, June 22, 1915, p. 1; The New York Times, June 22, 
1915, p. 6; June 24, 1915, p. 5; The American (New Orleans), 
June 22, 1915, p. 1. 

44. Frank Papers; clipping, June 23, 191 5, Boston Herald-Trav- 
eler Library; New Orleans American, June 23, 19 15, p. 1; The 
New York Times, June 24, 191 5, p. 5; The Jeffersonian, July 22, 
1915, p. 2. 

45. The Jeffersonian, June 24, 1915, pp. 1, 2, 3. 

46. There seems to have been no consensus about the size of 
the crowds. The Atlanta Constitution gave no figures but used 



214 notes: Pages 133-138 

the phrase, "several thousand people," AC, June 22, 191 5, p. 1; 
The New York Times and The New Orleans American placed 
the figure at 10,000, both June 22, 191 5, p. 1; The New York 
Evening Post, June 21, 1915, p. 1, stated 2,500; and in 1942 Hal 
Steed used the number, 5,000, Steed, p. 240. 

47. Ibid. AC, June 22, 1915, pp. 1, 2; June 29, 1915, p. 1; New 
Orleans American, June 22, 1915, p. 1; June 23, 1915, p. 1; The 
New York Times, June 22, 19 15, p. 1; Powell, pp. 290-91. 

48. Quoted in The American Israelite, July 8, 191 5, p. 1. 

49. AC, June 27, 1915, pp. iA, 4A, June 29, 1915, p. 6; The 
New York Times, June 27, 19 15, p. 1. 

50. Clipping, June 28, 1915, Slaton Scrapbook, Georgia Ar- 
chives. There are many other clippings expressing the identical 
sentiment throughout the scrapbooks. 

51. The American Israelite, July 29, 191 5, p. 4. 

52. Cash, p. 140. For this same view see also, Macdonald, The 
Kansas City Star, January 17, 191 5, p. 3C; Ward Greene, pp. 
132-33; Steed, p. 238; and Albert Bushnell Hart, The Southern 
South (New York, 191 2), p. 70. 

53. The Cherokee Advance, June 25, 19 15, p. 4. 

VIII. VIGILANTE JUSTICE 

1. The Marietta Journal and Courier, June 25, 191 5, p. 1; July 
9, 1915, p. 2; July 16, 1915, p. 6; AC, July 18, 1915, p. 2A; July 
19, 1915, pp. 1, 2; The New York Times, July 14, 1915, p. 1; 
Nathaniel E. Harris, Autobiography (Macon, Georgia, 1925), p. 
366. 

2. The American Israelite, July 22, 1915, p. 17. 

3. Leo Frank to Mrs. Leo Frank, June 23, 24, 29, July 2, 5, 
6, 8, & 9, 19 1 5. Frank Papers, Brandeis University (Waltham, 
Mass.). 

4. Leo Frank to Julius Rosenwald, July n, 1915, Rosenwald 
Papers. Leo Frank to Oliver Wendell Holmes, July 10, 1915, a 
letter that was in the possession of the late Mark de Wolfe Howe. 
He generously sent me a copy. 

5. In his A Standard History of Georgia and Georgians, L. L. 
Knight wrote, "What subtle irony in the choice of such a weapon 
with which to inflict death upon one of Abraham's seed!" II, 1 185. 

6. AC, July 18, 1915, pp. iA, 2A, July 20, 1915, p. 1; July 22, 



notes: Pages 1 38-141 215 

1915, p. 7; August 2, 1915, p. 1; AJ, July 18, 1915, p. 1; July 19, 
19 1 5, p. 1; The New York Times, July 18, 191 5, p. 1; July 19, 
i9i5,p. 1. 

7. Harris, pp. $65-66; AC, July 19, 191 5, pp. 1, 2; July 20, 
191 5, p. 1; AJ, July 24, 19 1 5, p. 1. Harris recorded his observa- 
tions about Leo Frank in an autobiography, published a decade 
later. He remembered that when interviewing Frank, the prisoner 
laughed "a queer sort of laugh." To Harris, this laugh showed, 
"a hard, careless heart," and the doubt which the Governor had 
heretofore held about Frank's guilt "was lessened greatly." As he 
looked back upon the incident, Harris could not recall why he 
had been so impressed, but he "felt then that the man was un- 
doubtedly a hardened criminal or a reckless prisoner." Harris, p. 
367. 

8. AC, July 20, 19 1 5, p. 1; The American Israelite, July 22, 
191 5, p. 7; Leo Frank to W. W. Stevens, August n, 19 15, Frank 
Papers, Brandeis. 

9. Pittsburgh Press, July 27, 1915, Detroit Free Press, July 19, 
191 5, Frank Papers; TAC, July 19, 191 5, p. 4; "Leo Frank," The 
New Republic, III (July 24, 1915), 300. 

10. The New York Times, August 17, 191 5, p. 1; August 23, 
1915, p. 5; AC, August 17, 1915, p. 1; August 18, 1915, pp. 1, 
2; F. J. Turner to Mrs. Leo Frank, August 17, 19 15, Frank Papers, 
Brandeis. 

1 1. Steed, p. 240; Harry Golden, A Little Girl Is Dead, p. 288; 
Smith interview, April 2, 1964; F. J. Turner to Mrs. Leo Frank, 
August 17, 1 91 5, Frank Papers, Brandeis; "The End of the Frank 
Case," The Outlook, CXI (September 15, 1915), 115; AC, Au- 
gust 18, 1915, p. 1. 

12. The New York Times claimed to have received the infor- 
mation that follows "in a manner which seemingly placed its au- 
thenticity beyond all question." August 23, 191 5, p. 5. 

13. Clipping from the newspaper library of the Boston Herald- 
Traveler, September 21, 19 15; "Why Was Frank Lynched?" 
Forum, LVI (December, 1916), 688-89. 

14. AC, August 17, 1915, p. 1; August 18, 1915, pp. 1, 2; Au- 
gust 21, 1915, p. 1; AJ, August 7, 1915, p. 3; The New York 
Times, August 18, 1915, pp. 1, 3; August 19, 1915, pp. 1, 3; Au- 
gust 23, 1915, p. 5. 

The lynching of Leo Frank was in some ways atypical. The 



216 notes: Pages 143-146 

"typical" Southern lynching usually resulted from the spontaneous 
uprising of a drunken mob of poorly educated adolescent boys 
and young men, intent upon avenging an alleged violation of a 
woman, or giving summary punishment to a suspected murderer. 
Only in a minority of cases did the "best citizens" actually par- 
ticipate in the lynching. Hadley Cantril, The Psychology of So- 
cial Movements (New York, 1941), pp. 83, 86; Cash, pp. 309-10; 
Carl Iver Hovland and Robert R. Sears, "Minor Studies of Ag- 
gression: VI. Correlation of Lynchings with Economic Indices," 
The Journal of Psychology, IX (1940), 305-7; Arthur F. Raper, 
The Tragedy of Lynching (Chapel Hill, N.C., 1933), pp. 1, 8- 
12, 20. 

15. Taking souvenirs at lynchings may not have been unusual. 
In 1899 a national periodical reporter noted the following after 
a Negro had been burned at Palmetto, Georgia: "Before the body 
was cool, it was cut to pieces, the heart and liver being espe- 
cially cut up and sold. Small pieces of bone brought 25 cents, 
and 4 a bit of the liver, crisply cooked, sold for 10 cents.' So eager 
were [sic\ the crowd to obtain souvenirs that a rush for the stake 
was made, and those near the body were forced against it had to 
fight for their escape." T. G. Steward, "The Reign of the Mob," 
The Independent, LI (1899), ,2 96. John R. Steelman noted that 
in a high proportion of lynchings souvenirs are taken by the 
members of the mob and the onlookers. "A Study of Mob Ac- 
tion in the South" (unpublished Ph.D. dissertation, Dept. of So- 
ciology, University of North Carolina, 1928), p. 412. 

16. A J, August 17, 191 5, pp. 1, 3; The New York Times, Au- 
gust 19, 1 915, p. 3; Steed, p. 240. 

17. The Marietta Journal and Courier, August 20, 19 15, p. 1. 

18. AC, August 18, 19 1 5, pp. 1, 2; The New York Times, Au- 
gust 21, 1915. P- 4- 

19. Irving M. Engel to author, February 19, 1964. AC, August 
18, 1915, pp. 1, 2; August 22, 1915, II, 11. 

20. AC, August 20, 1915, p. 12; August 21, 1915, p. 3; Racine 
Times, August 30, 1915, Frank Papers. 

21. Although the newspaper reporters stated that the lynchers 
were generally known, none of the names of the alleged partici- 
pants was published at the time. 

22. The Marietta Journal and Courier, August 20, 191 5, p. 6; 



notes: Pages 146-149 217 

The Greensboro Herald- Journal, August 27, 1915, p. 1; clipping 
from Boston Herald-Traveler Library, September 8, 19 15; Sacra- 
mento (California) Record-Union, August 25, 191 5, Frank Papers; 
Justine Wise Polier and James Waterman Wise, editors, The Per- 
sonal Letters of Stephen Wise (Boston, 1956), p. 151; AC, Au- 
gust 18, 1915, p. 1; The New York Times, August 18, 1915, p. 1; 
August 19, 19 1 5, pp. 1,3; August 23, 19 1 5, p. 5; The North Geor- 
gia Citizen, August 19, 19 15, p. 4; The Pittsburgh Gazette, August 
26, 19 1 5, Frank Papers. New York City's Evening Post observed: 
u The Coroner's 'quest at Marietta deserves to rank with any Dog- 
berry's day for a sense of the bounds of human penetration: it 
is doubtful if the most shrewdly stupid Elizabethan villager could 
have seen less of what was unsafe than some of the witnesses 
called yesterday." August 25, 1915, p. 8. 

23. "Mob-Law in Georgia," Literary Digest, LI (August 28, 
19 1 5), 392; AC, August 18, 19 1 5, p. 6. See also The Progressive 
Farmer, XXX (August 28, 19 15), 790. 

24. The Christian Index, XCV (August 26, 191 5), 3, as cited 
in Carl Dean English, u The Ethical Emphases of the Editors of 
Baptist Journals Published in the Southeastern Region of the 
United States, 1 865-1915" (unpublished Th.D. dissertation, South- 
ern Baptist Theological Seminary, 1948), p. 159. 

25. Knight, A History of Georgia and Georgians, II, 1 196; AC, 
August 19, 19 1 5, p. 12; The Jeffersonian, August 19, 19 15, p. 1. 

26. LM to Herbert Haas, May 7, 19 15, May 21, 191 5, May 28, 
1915. 

27. Quoted in The New York Times, August 19, 191 5, p. 3. 

IX. AFTERMATH 

i. Woodward, Origins of the New South, pp. 158-60. 

2. John R. Steelman, "A Study of Mob Action in the South" 
(unpublished Ph.D. dissertation, University of North Carolina, 
1928), p. 128. 

3. John M. Slaton, "Governor Slaton's OWN Defense in the 
Frank Case," The New York World, editorial section^ July 4, 
195 1, p. 1. 

4. Thomas Walker Page, "Lynching and Race Relations in the 
South," The North American Review, CCVI (August, 191 7), 
243; Edwin McNeill Poteat, Jr., "Religion in the South," in Cul- 



218 notes: Pages 149-150 

ture in the South, ed. W.T. Couch (Chapel Hill, N.C., 1935), 
p. 258; H. C. Brearley, "The Pattern of Violence," in ibid., p. 
687; Josephine Pinckney, "Bulwark Against Change," in ibid., p. 
46; Cash, pp. 44, 309-10; Benjamin Kendrick, "The Study of the 
New South," The North Carolina Historical Review, HI (January, 
1926), 10; John Carlisle Kilgo, "An Inquiry Concerning 
Lynchings," The South Atlantic Quarterly, I (January, 
1902), 5-9, passim; Charles S. Sydnor, "The Southerner and the 
Laws," The Journal of Southern History , VI (February, 1940), 
8-14, passim; Eaton, The Mind of the Old South, p. 241; Virginius 
Dabney, Liberalism in the South (Chapel Hill, 1932), p. 360; 
Christian Index, July 28, 1892, March 23, 1899, as cited in Rufus 
B. Spain, "Attitudes and Reactions of Southern Baptists to Cer- 
tain Problems of Society, 1865-1900" (unpublished Ph.D. disser- 
tation, Vanderbilt University, 1961), p. 188. 

5. Although the Ku Klux Klan became as strong, if not 
stronger, in parts of the North and the West, as it was in the 
South after the first World War, the origins of the new organ- 
ization were definitely Southern. 

6. Charles C. Alexander, The Ku Klux Klan in the Southwest 
(Lexington, Ky., 1965), p. 3; Arnold S. Rice, The Ku Klux Klan 
in American Politics (Washington, D.C, 1962), p. 2. 

7. Kenneth Coleman, Georgia History in Outline (Athens, 
i960), p. 96. Coleman noted that the Klan had such an enormous 
following in Georgia that "most office seekers considered Klan 
membership a prerequisite for election." One sociologist noted 
that "a very high percentage" of the Atlanta police force be- 
longed to the revised Ku Klux Klan. Sutker, unpublished Ph.D. 
dissertation, p. 17. 

8. Golden, A Little Girl Is Dead, p. 300. I questioned Golden 
about the source for this information. He replied that he had 
heard it said and then had it confirmed in an interview with one 
of the lynchers and a son of this lyncher. Golden to Leonard 
Dinnerstein, January 24, 1966. This point is also made in an un- 
published essay by A. L. Henson, in the files of the Anti-Defama- 
tion League, New York City. 

9. Harold W. Sullivan, Trial By Newspaper (Hyannis, Mass., 
1961), p. 19; Joughin and Morgan, p. 196; John P. Roche, "Amer- 
ican Liberty: An Examination of the Tradition' of Freedom," in 
Aspects of Liberty, edited by Milton R. Konvitz and Clinton 



notes: Pages 1 51-157 219 

Rossiter (Ithaca, N.Y., 1958), p. 147; and George Palmer Garrett, 
"Public Trials," The American Law Review, LXII (1924), 8. 

10. Alden Todd to Leonard Dinnerstein, January 19, 1964. Mr. 
Todd wrote that one of the top editors of The Atlanta Journal 
had expressed the opinion that Dorsey had "deliberately set about 
to stir up the hate-pack in a cynical bid for political notoriety 
and power." 

n. Moore v. Dempsey, 261 U.S. 86 (1923). 

12. LM to Adolph Ochs, January 14, 1925, Reznikoff (ed.), 
Louis Marshall, II, 847. 

13. Brown v. State of Mississippi, 297 U.S. 278 (1936). 

14. Chambers v. Florida, 309 U.S. 227, 239 (1940). 

15. Ashcraft v. Tennessee, 327 U.S. 274, 276 (1946); see also 
Ashcraft v. Tennessee, 322 U.S. 143 (1944). 

16. Fikes v. Alabama, 352 U.S. 191 (1957). 

17. Escobedo v. Illinois, 378 U.S. 478, 488 (1963). 

18. The New York Times, June 14, 1966, pp. 1, 24; Miranda 
v. Arizona, 384 U.S. 436, 479 (1966). 

19. Shepherd v. State of Florida, 341 U.S. 50, 51 (1951). 

20. Rideau v. Louisiana, 373 U.S. 723, 726 (1963). 

21. Justice Black dissented but did not write an opinion. 

22. Sheppard v. Maxwell, 384 U.S. 333, 340, 355-57 (1966); 
The New York Times, June 7, 1966, pp. 1, 43. 

23. Berger v. United States, 295 U.S. 78, 84 (1935). 

24. Viereck v. United States, 318 U.S. 236, 248 (1943). 

25. Miller v. Pate, 87 Supreme Court Reporter 785, 788 (1967); 
35 Law Week 4180; The New York Times, March 21, 1967, p. 20. 

26. Mooney v. Holohan, 294 U.S. 103 (1935). 

27. Heysler v. Florida, 315 U.S. 411 (1942). See also Pyle v. 
Kansas, 317 U.S. 213 (1942). 

28. Alcorta v. Texas, 355 U.S. 28, 31 (1957). 

29. Napue v. Illinois, 360 U.S. 264, 266 (1959). 

30. B'nai B y rith News, October, 191 3, p. 1. 

31. Rembert G. Smith, D.C., "Some Lurid Lessons from the 
Frank Case," The Public, XVIII (October 1, 191 5), 952. 

32. Alden Todd to Leonard Dinnerstein, January 19, 1964. 
Todd found some information on Frank while doing research for 
his study of Brandeis's confirmation to the Supreme Court in 
19 1 6: Justice on Trial (New York, 1964). 

33. Asburv, The American Mercury^ VII, 91. 



220 notes: Pages 158-162 

34. Pierre Van Paassen, To Number Our Days (New York, 
1964), pp. 237-38. 

35. Telephone conversation with Majorie Merlin Cohen, New 
York City, February 9, 1964. Forty years after the murder, in 
fact, citizens still became embroiled in bitter arguments when 
Frank's guilt or innocence was discussed. Ernest Rogers, Peach- 
tree Parade (Atlanta, 1956), p. 71. And as late as 1961 the National 
States Rights Party inaugurated a campaign to revive interest in 
Mary Phagan's murder. Clipping, an Atlanta newspaper, May 20, 
1 96 1, located among the Frank Papers in Brandeis. 

36. The New York Times, January 18, 19 19, p. 2; February 25, 
1 9 19, p. 5; AC, February 25, 19 19, p. 6; Golden, A Little Girl Is 
Dead, pp. 311-12. 

37. Memo of a conversation had by Samuel A. Boorstin in 
Atlanta, Georgia, with Governor Slaton, October 12, 1953, ADL 
files in New York City; John M. Slaton, Jr. (Gov. Slaton's 
nephew) to Harold Marcus, January 15, 1961, Frank Papers, 
Brandeis; AC, January 12, 1955, p. 1; Time, LXV (January 24, 
1955), 19; Golden, A Little Girl Is Dead, p. 306. 

38. E. Merton Coulter, Georgia: A Short History (Chapel Hill, 

'947)> P- 400. 

39. Knight, A History of Georgia, II, 1 208. 

40. AC, September 13, 19 16, p. 1; Woodward, Tom Watson, 
p. 473; Golden, A Little Girl Is Dead, p. 305. 

41. Woodward, Tom Watson, pp. 448-49, 458, 461, 466-68, 
473, 486. 

42. Richard S. Rauh, "The First American Martyr," Jewish 
Criterion (Pittsburgh), August 20, 191 5, clipping, Slaton Papers, 
Georgia State Archives, Atlanta. 

43. Herbert Asbury, "Hearst Comes to Atlanta," The Ameri- 
can Mercury, VII (January, 1926), 91. 

44. Smith interview. 

45. Francis X. Busch, Guilty or Not Guilty (Indianapolis, 

"950, PP- 7 3-74- 

46. Ross's article is reprinted in Golden, A Little Girl Is Dead, 

PP- 355-58. 

47. Woodward, Tom Watson, p. 435. 

48. Samuels, p. 222; Roche, The Quest for the Dream, p. 91; 
Golden, A Little Girl Is Dead, p. xiv. 



Selected Bibliography 



no attempt has been made to include all sources cited in the foot- 
notes. For a more extensive bibliography, see Leonard Dinnerstein, 
"The Leo Frank Case" (unpublished Ph.D. Dissertation, Department 
of History, Columbia University, 1966). 



MANUSCRIPT SOURCES 

American Jewish Committee. Minutes of the Executive Commit- 
tee, 1906— 1915. American Jewish Committee Archives, New York 
City. 

Boorstin, Samuel A. "Memo of Conversation had by Samuel A. 
Boorstin in Atlanta, Ga., with Governor Slaton," October 12, 1953. 
Anti-Defamation League files, New York City. 

Louis Brandeis Papers, File 21891. Law offices of Nutter, McClen- 
nen & Fish, Boston. 

Leo Frank Papers. American Jewish Archives, Cincinnati. 

Leo Frank Papers. Brandeis University, Waltham, Massachusetts. 

The Leo Frank Folder. Anti-Defamation League, New York City. 

The Leo Frank Correspondence Folder. American Jewish Commit- 
tee Archives, New York City. 

Louis Marshall Papers. American Jewish Archives, Cincinnati. 

Prison Commission Records. Georgia State Archives, Atlanta. 

Julius Rosenwald Papers. Microfilm from the University of Chi- 
cago. 

Jacob Schiff Papers. American Jewish Archives, Cincinnati. 

John M. Slaton Papers. Georgia State Archives, Atlanta. 



222 Bibliography 

John M. Slaton Papers. Brandeis University, Waltham, Massa- 
chusetts. 
Felix Warburg Papers. American Jewish Archives, Cincinnati. 
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NEWSPAPERS 

The American Israelite (Cincinnati). 1913-1915*. 

The Atlanta Constitution. 1913-1915. 

The Atlanta Georgian. 1913. 

The Atlanta Journal 1913-1915*. 

The Augusta Chronicle. 1913-1915*. 

The Baltimore Morning Sun. 1913-1915-. 

The Herald-Journal (Greensboro, Georgia). 1913 — 1915. 

The Jeffersonian. 1913-1915*. 

The Jewish Advocate (Boston). 1923. 

The Marietta Journal and Courier '(weekly edition). 1913-1915". 

The New York Times. 1913-1915*. 

The New York World. 1915-. 

The North Georgia Citizen (Dalton, Georgia). 1913-1915. 

The Savannah Morning News. 1913-1915-. 

Newspaper Clippings: 

Boston Herald-Traveler Library, Boston. 

Leo Frank Papers, American Jewish Archives, Cincinnati. 

John M. Slaton Papers, Georgia State Archives, Atlanta. 



LEGAL SOURCES AND FEDERAL DOCUMENTS 

Ashcraftv. Tennessee, 327 U.S. 274 (1946); 322 U.S. 143 (1944). 

Bergerv. United States, 295 US. 78 (1935). 

Brown v. Mississippi, 294 US. 278 (1936). 

Chambers v. Florida, 309 U.S. 227 (1940). 

Escobedo v. Illinois, 378 US. 478 (1963). 

Fikes v. Alabama, 352 U.S. 191 (1957). 



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Heyslerv. Florida, 315 U.S. 411 (1942). 

Miller v. Pate, 386 U.S. 1 (1967). 

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Mooney v. Holohan, 294 US. 103 (1935). 

Pylev. Kansas, 317 U.S. 213 (1942). 

Rideau v. Louisiana, 373 U.S. 723 (1963). 

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published essay in the files of the Anti-Defamation League, New 
York City. 

Roberts, Essie. "A History of Child Labor Legislation in Georgia 
and Alabama." Unpublished Master's thesis, Columbia Univer- 
sity, 1916. 

Rogers, William Curran. "A Comparison of the Coverage of the 
Leo Frank Case by the Hearst-Controlled Atlanta Georgian and 
the Home-Owned Atlanta Journal, April 28, 1913-August 30, 1913." 
Unpublished Master's thesis, University of Georgia, 1950. 

Shapiro, Yonathan. "Leadership of the American Zionist Organiza- 
tion, 1897-1930." Unpublished Ph.D. dissertation, Columbia Uni- 
versity, 1964. 

Spain, Rufus B. "Attitudes and Reactions of Southern Baptists to 
Certain Problems of Society, 1865-1900." Unpublished Ph.D. dis- 
sertation, Vanderbilt University, 1961. 

Steelman, John R. "A Study of Mob Action in the South." Unpub- 
lished Ph.D. dissertation, Department of Sociology, University 
of North Carolina, 1928. 

Sutker, Solomon. "The Jews of Atlanta: Their Social Structure and 
Leadership Patterns." Unpublished Ph.D. dissertation, Depart- 
ment of Sociology, University of North Carolina, 1950. 

Weisberg, Lee Arnold. "Beyond a Reasonable Doubt: A Study of 
the Leo Frank Case." Unpublished Honors Paper, Department 
of History, Yale University, 1963. 

Yeomans, Manning Jasper. "Some Facts about the Frank Case." 
Typewritten thesis, Emory University, n.d. [ca. 1915]. 

PERSONAL COMMUNICATIONS 

A. Interviews 

Alexander Brin, in Boston, August ij, 1964. Mr. Brin covered the 

Frank case for the Boston Traveler in 191 j. 
Harold Davis, in Atlanta, January 24, 1964. Mr. Davis is an editor of 

The Atlanta Journal 



244 Bibliography 

Alexander Miller, in the offices of the Anti-Defamation League, 
New York City, September 15, 1964. Mr. Miller was at one time 
the regional director of the Anti-Defamation League in Atlanta. 
In 1953 h e sponsored a study of the Leo Frank case. 

McLellan Smith, in Washington, April 2, 1964. Mr. Smith covered 
the Frank case as a cub reporter for The Atlanta Georgian. He was 
at the press table during the trial. 

B. Telephone Conversations 

Marjorie Merlin Cohen, February 9, 1964, New York City. Mrs. 
Cohen was interested in the Frank case as a graduate student 
in Georgia. She was refused access to the records of the case by 
Rabbi David Marx. 

Franklin Garrett, in Atlanta, January 24, 1964. Mr. Garrett is the 
author of Atlanta and Environs, and one of the best versed people 
on Atlanta's history 

Wilber Kurtz, January 24, 1964, in Atlanta. Mr. Kurtz has resided 
in Atlanta since 1913. He is a student of the city's history and ex- 
tremely well versed in the subject. 

Louise Samuels, October 19, 1963. Mrs. Samuels is co-author of 
Night Fell on Georgia. 

C. Letters from: 

Irving M. Engel, February 19, 1964. Mr. Engel is a former President 
of the American Jewish Committee. 

Harry Golden, January 24, 1966. Mr. Golden has written about 
Frank in his book, A Little Girl Is Dead. 

Alton DuMar Jones, May 21, 1964. Mr. Jones's Ph.D. dissertation is 
"Progressivism in Georgia." 

Ralph McGill, January 28, 1964. Mr. McGill is publisher of The At- 
lanta Constitution. 

DeWitt H. Roberts, February 14 and 19, 1964. Mr. Roberts did a study 
of the Frank case for the Atlanta office of the Anti-Defamation 
League in 1953. 



Bibliography 245 

McLellan Smith, February 24, 1964. Mr. Smith covered the Frank 

case as a reporter for The Atlanta Georgian. 
Alden Todd, January 19, 1964. Mr. Todd has written a book on the 

confirmation of Louis D. Brandeis to the United States Supreme 

Court: Justice on Trial. 



Index 



Addams,Jane, 118 

Adler, Cyrus, 74 

Alexander, Henry, defense lawyer, 
87, 101, 108, 109 

American (New Orleans), 131 

Amencan Hebrew, quoted, 74 

American Jewish Committee, 
62-63, 74—76, 90 ff-> 106; see also 
Marshall, Louis; and individual 
names 

Anti-Defamation League, 157; 
Atlanta chapter, 59 

Anti-Semitism: toward Frank, 1, 
18-19, 20, 32-33, 52-53, 60, 63, 
74, 75-, 106, 120-21, 129; in trial 
testimony, 52-53, 60; in Georgia, 
64, 70-72, 116-17, 130-32, 157-58; 
in United States, 66-72 passim, 
74; development in South, 66-71; 
reasons for, 69; in North, 70, 
72; in France and Russia, 72-74; 
Beiliss case, 73, 74; Dreyfus 
affair,73,74;ofjurors,77;in 
Atlanta, 116, 130, 158; of Watson, 
97-99, 119-20, 132, 134; Anti- 
Defamation League, 157; see 
alsojews 

Arkansas Gazette (Little Rock), 93 

Arnold, Reuben R., defense coun- 



sel, 37, 45-47, 52, 91, 107; and first 
appeal, 77, 78; before Georgia 
Supreme Court, 81 

Asbury, Herbert, 157, 161 

Atkinson, Justice Samuel C, 81-82 

Atlanta: workers and working 
conditions, 7-8; crime in, 8-9, 
16, 71-72; official fear of violence 
in Phagan case, 15, 25, 54, 59-61, 
109, no, 113, 116, 120, 126; mass 
meetings, 120-21; reaction to 
commutation, 132-33; reaction to 
lynching, 144-45; City Council, 
145; see also Police, Atlanta 

Atlanta Constitution, 11; quoted on 
murder, 6, 15-16, 19-20; cover- 
age of Phagan murder, 13, 16, 18, 
29-31, 34; assumption of Frank's 
guilt, 31; quoted on trial, 36, 46, 
47, 49, 51, s^ 94; trial coverage, 
37-56 passim, 54; quoted, 64, 
93-94, 133, 146, 159, 170; unpub- 
lished story of evidence, 158 

Atlanta Georgian, 11; quoted on 
murder, 6, 14, 22, 24, 25, 29, 34-35, 
170; coverage of Phagan murder, 
13, 14-15, 29-31; quoted on trial, 
36, 46, 49-50, 60; trial coverage, 
37-60 passim; support of Frank, 



248 

Atlanta Georgian (cont'd) 
79-80, 119; and retractions, 
8j; and commutation, 129-30; 
article on trial by "Old Police 
Reporter," 172-77 

Atlanta Journal, quoted on murder, 
14, 20, 25; coverage of Phagan 
murder, 14, 29-31; trial coverage, 
37— 4j passim; quoted on trial, 
40, 45, 94; and evidence, 84-85; 
and verdict, 94-95; support of 
Frank, 94-9 5, 119; and new trial, 
97-98, 11 j, 119; and commutation, 
129-30 

Augusta Chronicle, 119, 120, 122, 130, 
138; quoted on murder, 6, 15, on 
trial, 59-60 

"Ballad of Mary Phagan, The," 121; 

text, 166-68 
Beavers, John, 54 
Beck, George, Georgia Supreme 

Court Justice, 81-82 
Bee (Omaha), 118 
Beiliss, Mendel, 73, 74 
Benjamin, Judah P., 53, 66, 67 
Black,John, 17 
Black, Justice Hugo, 152 
B'nai BVith: Atlanta Chapter, 6; 

Anti-Defamation League, 

V7 
Boorstein, Samuel, 159, i7on 

Brandeis, Justice Louis, 157 

Brisbane, Arthur, 117 

Brown, J. E: quoted, 68-69 

Brown, Joseph, Governor of 

Georgia, 15, 60-61; quoted, 

1 16-17 
Burns, William J., 16, 34; and Frank 



Index 

case, 84, ioo-ioj, 128; attack on, 

in Marietta, 100— 101 
Burns Detective Agency, 23, 104 
Busch, Francis X.: Guilty or Not 

Guilty, quoted, 161 

Cahan, Abraham: quoted, j8, 66 

Canton, Georgia, 130 

Carter, Annie Maud, 102-3, IO J» I2 ^» 

Cash, W. J.: quoted, 69 

Chicago Tribune, 172, 173 

Child labor, 7-8, 10 

Christian Index, The. quoted, 146, 
149 

Clark, Justice Tom, 153—54 

Coleman, Mrs. Fannie Phagan 
(mother), 11, 54 

Colliers, 115— 16, 172, 173 

Columbus, Georgia, 130 

Conley,Jim, 21-22, 33-34; inter- 
rogation and affidavits, 20-26, 
34; affidavit of insurance agent, 
28-39; Grand Jury attempt to 
indict, 29, 34; as chief pros- 
ecution witness, 40-47, 49, ji, 
57-5-8, 1J1-J2; criticisms and 
commentary on testimony, 78, 
82, 87-90, 122, 127-28, 155-56, 
161, 174-75, ar| d Carter letters, 
102-3, ioj, 128, ] 55-56; identifi- 
cation as murderer, 114-15, 125, 
later criminal activities, 
158-59 

Connolly, C. P.: The Truth about the 
Frank Case, 87, 115 

Crane, Charles R., 118 

Creen, William, 137-39 

Curti, Merle: quoted, 65 



Index 

Dalton (Georgia) Citizen, 94, 119 
Democrat (Muskogee, Okla): 

quoted, 113 
Dorsey, Hugh M.: County 

Solicitor, 19, 20, 23, 25-26, 27-28, 

30, 35; and Grand Jury, 29, 34; 

Chief Prosecutor, 37—45, 52-53, 

55* 5 6 > io 3i tfi. 174". and first ap- 
peal, 78-79; before Georgia 

Supreme Court, 81; and retrac- 
tions, 86; and new trial motion, 
104-5; arguments before United 
States Supreme Court, 11 1-12; 
and clemency appeal, 120, 122, 
125, 130; criticism of methods, 151, 
154-55; later career, 159-60 
Dreyfus, Alfred, 73 

Epps, George, Jr., 17, 86 
Everybody's, 1 15-16 

Felder, Thomas, Attorney-General 
of Georgia, 81 

Fish, Georgia Supreme Court 
Justice, 81-82 

Formby, Mrs. Nina: affidavit of, 
17-18, 28, 85 

Frank, Leo: anti-Semitism toward, 
1, 18-19, 20, 32-33, 52-53, 60, 63, 
74, 75, 106, 120-21, 129; biography, 
^-6\ assistance of Jews, 62-63, 
74-76, 84, 90 

— and murder: reaction, 2-3, 4; 
arrest, 4-6; hiring of lawyers, 
6-7; newspapers and, 6, 30-31, 33, 
36, 49-51, 60, 84, 85, 91 ff; before 
Coroner's Jury, 16-17; tales of 
and testimony on perversion, 

i7—>9, y, 33, 5», 58, 78, 82-83, IOI ~ 2 > 



249 

174, 176; Grand Jury indictment, 
20; in Con ley affidavits, 21-25, 
174-75; at Fulton County Jail, 
25, 126 

— trial, 35-61 passim; testimony 
against, 37-54 passim, 58-59; 
testimony, 40, 48-51; verdict and 
sentence, 55-57; see also Phagan 
murder; Phagan trial 

— trial aftermath: first appeal, 
77-81, 90; Georgia Supreme 
Court hearing and refusal of 
new trial, 81-84, 99; Watson's at- 
tacks on, 97-99; execution date, 
123; at Milledgeville state prison 
farm, 126, 136-37; attack on by 
fellow prisoner, 137-39; kidnap- 
ping of, 139-41; lynching of, 
141-42, 161; crowd actions after 
lynching, 143-44; Coroner's 
Jury, 145-46; continued opinions 
on guilt or innocence, 160-62; 
see also Phagan murder; Phagan 
trial aftermath 

Frank, Lucille Selig (Mrs. Leo), 6, 
18, ^6\ and Frank, 27-28, 53, 137 

Frank, Moses (uncle), 5 

Frank, Mrs. Rae (mother): trial 
testimony, 51 

Frankfurter, Justice Felix, 153, 

Freeman, Negro prisoner: account 

of Phagan murder, 125, 169-71 
Frosts Magazine, quoted on trial, 

47-48 

Georgia Immigrant Society, 64 
Georgia militia, 15, 60, 133 
Georgia National Guard, 54, 61 



2 5° 

Georgia Prison Commission, 113, 

118 ff., 126; hearing and refusal of 

clemency, 121-22 
Georgia Supreme Court: hearing 

and refusal of new trial, 81-84, 

99; refusal of appeal, 107-9; 

refusal of writ of error, 109 
Georgia, United States District 

Court, North, no 
Goldberg, Justice Arthur, 152 
Golden, Harry: quoted, 68, 162 
Greensboro (Georgia) Herald- 

Journal, 94; quoted, 80, 145 
Grice, Warren, Attorney-General 

of Georgia, m-12 
Gunther, John: quoted, 92 

Haas, Herbert, lawyer, 6, 76, 100; 

quoted, 79, 104, 105; defense 

counsel, 107 
Haas, Leonard, defense lawyer, 91, 

107, 109 
Haas brothers, 107-8 
Hardwick, Senator Thomas, 119, 123 
Harris, Nathaniel, Governor of 

Georgia, 123, 133, 138, 147 
Hearst, William Randolph, 11-12, 30 
Hendrick, Burton J.: quoted, 72 
Henslee, A. H., 77, 78 
Henson, A. L., 170-71 
Herald (Louisville), 118 
Higham, John: quoted, 33, 69, 71 
Hill, Judge Ben, 105, 107 
Holmes, Justice Oliver Wendell, 

109, 112-13, '37. '5 1 
Hooper, Frank, assistant prosecu- 
tor, 37, 52; and first appeal, 78-79 
Hughes, Justice Charles Evans, 

112-13 



Index 
Hummel, Abe, 53 

Indianapolis News: quoted, no 

Jackson, Justice Robert, 153 
Jeffersonian, The, 96, 146, 160; attacks 
on Frank, 97-99, 119-20; attacks 
on Slaton, 123, 124, 132 
Jewish Forward, quoted, 58 
Jews: and Frank, 6, 53, 62, 74, 
76, 84, 158; Southern attitude 
toward, 32, 64-70; immigra- 
tion to United States, 63-64; in 
Georgia, 66\ in Atlanta, 70-72, 
74, 101; and Negroes, 71-72; as- 
sistance to Frank, 62, 74-76, 84, 
91-92, 101, 105, 117-18, 134; see also 
American Jewish Committee; 
Anti-Semitism 
Johenning, M., 77, 78 
Journal of Labor (Atlanta), 8; 
quoted, 10 

Kallen, Horace M.: quoted, 68 
Kansas City Star, 115 
Kendley, George, 51-52 
Knickerbocker (Albany, N.Y.): 

quoted, no 
Knight, Lucian Lamar: quoted, 72, 

130, 146 
Knights of Mary Phagan, 136, 

149-50 
Kraus, Adolph, 157 
Ku Klux Klan, 149-50, 158, 160 

Lamar, Justice Joseph R., 109, no— n 
Lanford, Newport, Chief of 

Detectives, 5, 15, 23, 24, 26, 40, 

85, 101 



Index 

Lasker, Albert D.: financial assis- 
tance to Frank, 92; legal aid, 92, 
104, 105, 134; quoted, 100 

Lee, Newt, night watchman, 103; 
discovery of body, 1-2, 4-5; 
arrest and questioning, 14-15; 
Coroner's Jury testimony, 
16-17 

Legal reforms: of elements in 
Frank case, 150-56 

Lindsay,Judge Ben, 118 

Lockhart, Fred, 14m, i43n 

Loyless, Thomas, editor, 116, 120, 
122, 130, 138 

Lynching: of Frank, 141-44, 149; in 
South, 148-49 

McClures Magazine, quoted, 72 
McGill, Ralph: quoted, 159 
McKnight, Frank, 49, 85, 86 
McKnight, Minola, 26-27 
Macon Daily Telegraph, quoted, 62 
Macon News, 93 

Madison (Wisconsin) Journal, 133 
Madisonian, The. quoted, 99 
Manufacturers Record, quoted, 64 
Marietta, Georgia: attack on 

Burns, 100-101; anti-Semitism in, 

130, 131; kidnapping and lynching 

of Frank, 136, 139-44 
Marietta Journal and Courier. 

quoted, 144, 146 
Marshall, Louis: President of 

American Jewish Committee, 

74-75, 7 6 > 79, 9o, 9'-93> "34; legal 
aid to Frank, 90, 105-6, 108, 109, 
in— 12, 117, 146-47; quoted, 108, in, 
113, 117 
Marx, Rabbi David, 101 



V 1 
Memphis Commercial Appeal: quoted, 

9-10 
Mobile Tribune, 93 
Morgan, Edmund M.: quoted, 59 
Morgan, Senator John T., 68 
Morris, Judge Newton, 143-44, 146 
Murphy, Elmer, 118 

Napier, D. B. (Bunce), 14m, i43n 

National Pencil Company, 6; fac- 
tory, 1, 4 

Negroes: in Atlanta, 8-9, 16; in 
South, 33, 45, 53-54, 149; use of 
term "nigger" in trial, 53-54; and 
Jews, 71-72 

Newnan, Georgia, 130 

New Republic, quoted, 138-39 

News (Brunswick, Ga.), 119 

News (Macon, Ga.), 130 

Newspapers: coverage of murder, 
1, 11-16, 18-19, 21, 24, 25, 29-31; 
and Frank, 6, 30-31, 33, 36, 49-51, 
60, 84, 85, 91 ff.; trial coverage, 
Atlanta, 36-60 passim; trial 
coverage, Georgia, 56-57, 59-60, 
62; on verdict, Atlanta, ^6, 60; on 
verdict, Georgia, 57, 59-60, 62; 
on first appeal, 80; on evidence 
and trial testimony, 84-85, 103; 
trial coverage, Northern, 85, 91 
ff.; on Supreme Court refusal 
of writ of error, no; reaction 
to Lamar's approval of writ of 
habeas corpus, in; reaction to 
United States Supreme Court 
refusal of writ of habeas corpus, 
113; reaction to identification of 
Conley as murderer, 115-17; 
wave of support for Frank, 



2J2 

Newspapers {cont'd) 

118-19; reaction to commutation, 

129-30; see also newspaper titles 
New York Journal, 13 
New York Times', and Frank case, 85, 

91-92, 93, 102, n8 
North Georgia Citizen see Dalton 

Citizen 

Ochs, Adolph, 91 

Oregonian (Portland): quoted, 111 

Outlook quoted, 33 

Palmer, Attorney-General A. 
Mitchell, 160 

Peeples, Henry, defense lawyer, 
108, 109 

Periodicals: on Frank, 33, 138-39; 
on trial, 47-48; on Jews, 72; on 
Frank case, 1 15-17, 172, 173; see 
also Newspapers; and newspaper 
titles 

Phagan, Mary, 11; funeral, 11; "The 
Ballad of Mary Phagan," 121, 
166-68 (text); monument to, 136; 
Knights of Mary Phagan, 136, 
149-50 

Phagan murder: discovery of 
body, 1-2; newspaper coverage, 
1, 11— 16, 18-19, 2I > 2 4> 2 5> 2 9~V'y 
path, 3, 5, 127; murder notes, 
3, 20-22, 49, 53, 87-90, 102, 121, 
128, 175; excrement in elevator 
shaft, 3, 45, 58, 127; fingerprints, 
4; arrests of Frank and Lee, 4, 
14-15; withholding of informa- 
tion, 4, 14, 21, 26, 34; blood spots, 
5, 34, 37, 58, 127-28; reactions to 
murder in Atlanta, 7, 18-19, 31, 
32-34, 36-37; fear of violence in 



Index 

Atlanta, 15, 25; Coroner's Jury, 
16-18; Grand Jury indictment of 
Frank, 20; search for murderer, 
19-35 passim; Conley affidavits, 
20-26; McKnight affidavit, 
26-27; Grand Jury and Conley, 
29, 34; hair, 34, 37, 84-85, 
128-29 

Phagan trial, 35-61; defense coun- 
sel, 6, 37; comments on hysteria 
during, 31, 47, 53-54, 56, 59-60, 
93-94, 109-13 passim, 116, 172-73; 
newspaper coverage, 36-60 
passim; public interest, 36-37, 
47, 54-55, 56, 6°; prosecution 
case, 37-45, 47-48, 51-52, 53-54, 
58-59, 174; prosecution counsel, 
37; Conley testimony, 40-47, 
49, 5 l > 51S^ 78, 82, 127-28, 
155-56, 161, 174-76; Conley cross- 
examination, 45-47; defense 
case, 45-47, 48-51, 52, 57, 58-59, 
174; trial judge, 46-47, 54-55, 
56, 57, 60, 174; summary argu- 
ments, 53-56; fear of violence 
in Atlanta, 54, 59-61, 109, no, 
113, 116, 120, 126; jury, 55-56, 61, 
77-79, 81, 90-91, 173; verdict and 
sentence, 55-57, 90-91; reaction 
to sentence, 56-57; testimony of 
city bacteriologist, 58; perjured 
testimony of state witnesses, 
85-87, 103, 155-56; article on in 
Atlanta Georgian, 172-77 

Phagan trial aftermath: first appeal, 
77-81, 90; prejudice of jurors, 
77-79, 8i; fears of mob action in 
case of new trial, 80-81; Georgia 
Supreme Court hearing and 
refusal of new trial, 81-84, 99* 



Index 

163-65; second appeal, 84, 90-91, 
105; repudiation of testimony 
by prosecution witnesses, 85-87; 
defense preparation for new 
trial, 84-90, 97, 106; defense 
contention of illegal holding 
of Frank, 90-91; appeal to and 
refusal by Georgia Supreme 
Court, 107-9; refusal of writ 
of error by Georgia Supreme 
Court, 109; refusal of writ of 
error by United States Supreme 
Court, 109; United States 
Supreme Court hearings on ap- 
peals for and refusal of writ of 
habeas corpus, no— 13, 117; Lamar 
approval of writ of habeas 
corpus, 111-12; identification of 
Conley as murderer, 114-15, 125; 
petition of clemency and com- 
mutation of sentence, 113-14, 117 
ff, 147; granting of commutation 
by Slaton, 126-29; reaction to 
commutation, 129—34; critique 
of actions of legal system in 
and judicial reforms of United 
States Supreme Court, 150-56; 
summary of case, 162 

Pinkerton Detective Agency, 4, 17, 
20, 170 

Pitney, Justice Mahlon, 112 

Pittsburgh Gazette, quoted, 
145-46 

Police, Atlanta, 8-9; and Phagan 
murder, 2, 3-4, 6, 14-16, 17, 22, 

28,34 
Post (Cincinnati), 118 
Powell, Judge Arthur: quoted, 10 
Press, see Newspapers; Periodicals; 

and newspaper titles 



2 J3 

Ragsdale, Rev. C. B., 103-4, 105 

Rhodes' Colossus, 118 

Roan, Judge Leonard, 25-26; trial 
judge, 46-47, 54-55, s^ 57, 60, 
159, 174; and first appeal, 77-81 
passim; doubt as to Frank's guilt, 
79-80, 81 fT., 112, 121, 125 

Roberts, De Witt H.: quoted, 59 

Roche, John: quoted, 162 

Rosenwald, Julius, 137, 172 

Ross, E. A.: quoted, 72 

Ross, Harold: quoted, 30, 161 

Rosser, Luther Z., chief defense 
counsel, 6, 37, 45-48, 52, 53, 
91, 98, 107, 123, 124, 174, 175-76; 
and first appeal, 77, 78; before 
Georgia Supreme Court, 81 

Rosser, Slaton, and Phillips, 124 

Ruef, Abe, 53 

Sabath, Representative Adolph, 

73 
Samuels, Charles and Louise: 

Night Fell on Georgia, quoted, 

161-62 
San Francisco Chronicle, quoted, 113 
Savannah Morning News', quoted, 

19,57 
Schiff, Jacob, 75, 134 
Scott, Harry, detective, 17, 20, 22, 

23, 26, 31 
Selig, Mrs. Emil (mother-in-law), 

27 

Simmons, Colonel William J., 
149-50 

Slaton, John M., Governor of 
Georgia, 80, 122-23, ,( $9, I 7 on J ar| d 
petition for clemency, 113, 117 ff, 
123-26, 147; commutation, 126-29, 
159; personal attacks on, 132—33; 



2 54 

Slaton, John M. [cont'd) 

quoted on lynchings, 148-49; 
later career, 159 

Slaton, Sarah (Mrs. John), 125-26; 
quoted, 133 

Smith, Senator Hoke, 97, 119, 157, 
159, 160 

Smith, McLellan, 161; quoted, 46 

Smith, William, lawyer of Conley, 
114-15, 159, 17m 

South: idealization of woman- 
hood, 9-10, 148, 149; industri- 
alization, 10, 150; resentment 
of Northerners, 32, 33, 58-59, 
92, 134; in-group loyalty and 
suspicion of outsiders, 32, 59, 
65, 70, 150; and Jews, 32, 64-70; 
and Negroes, 33, 45, 53-54, 149; 
Watson as spokesman for, 95-97; 
violence in, 148-49 

Southern Illustrated News: quoted, 67 

Southern Ruralist quoted, 85 

Speed, Keats, 11, 13 

Stewart, Justice Potter, 153 

Stone, Chief Justice Harlan F., 155 

Stover, Monteen, 37-38, 41, 48, 49 

Strauss brothers, 53 

Sulzberger, Cyrus, 74 

Sun (Baltimore), 93, 115; quoted, 116 

Sutherland, Justice George, 154 

Times (Detroit), 118 
Times-Dispatch (Richmond), 93; 

quoted, 146 
Train, Arthur P., 115-16 
Traveler (Boston), 118 
Trial of Frank, see Phagan murder; 

Phagan trial 



Index 

Tribune (Scranton, Pa.): quoted, in 
Tye, Peeples, and Jordan, 108 

United States Supreme Court: 
denial of writ of error, 109, in; 
hearing on and refusal of writ 
of habeas corpus, no— 13, 117; 
reforms in legal system, 150-56; 
revision of standard for fair tri- 
als, 151; on coerced confessions, 
151-53; on pretrial publicity, 
153-54; on methods of lawyers, 
154-55; on perjured testimony, 
\55-56 

Untermyer, Samuel: quoted, io6 

Vinson, Carl, 160 

Warren, Chief Justice Earl, 152, 156 

Washington Post, 93 

Watson, Tom, 33, 95-96, 159; and 
Frank case, 97-09, 115, 146, 150; 
technique of attacks, 98-99; and 
commutation appeal, 119-21, 
134-35; and Slaton, 123, 124, 132; 
later career, 160 

Watson's Magazine, 96, 120 

Waycross (Georgia) Herald, quoted, 
80 

Women: Southern idealization of, 
9-10, 148, 149; workers, 10, 33; ex- 
clusion from courtroom, 44-45 

Woodward, C. Vann: quoted, 70, 
96-97, 161 

Woodward, James, Mayor of 
Atlanta, 15 

Yulee, David, 66