That public opinion had turned against the defendant -- whose ethnicity, urbanity, perceived wealth, Northern roots, and employment of youthful females epitomized all that was alien to a frustrated, impoverished, formerly rural population -- was manifest in the cheering and applause that, at every prosecution victory, burst from the unruly spectators who roiled the courtroom and the raucous throng which flooded the nearby streets and alleys.
Cognizant of the dark cloud of hostility that enshrouded him and of the poisonous atmosphere that had permeated the entire proceedings, Leo Frank yet had remained confident of acquittal. When the grim tidings reached his friends and relatives who had gathered in the lobby of the Fulton County Tower, so shocked were they that they sent for a physician, Dr. Howard Rosenberg, before mounting the stairs to confront Frank and his wife Lucille in his jail cell. (Oney, pp. 341-342)
"My God," exclaimed Frank when informed of the verdict. "Even the jury was influenced by mob law." Lucille threw her arms about her husband's neck and sobbed bitterly. She refused to speak to the gaggle of reporters who greeted her emergence from the building. One of her entourage, Benjamin Wildauer, issued Frank's lone official statement: "I am as innocent today as I was one year ago." (Oney, p. 342)
The trial's outcome was a source of mounting unease among Atlanta's German-Jewish elite, and to many of them, after considering the evidence and the antipodal reputations of the two protagonists, Frank and Conley, inexplicable -- except by reference to a sentiment heretofore either inconceivable or pridefully dismissed: anti-Semitism. (Oney, p. 345)
Leonard Dinnerstein documents an upsurge in overt anti-Semitism in the South at the end of the nineteenth century, and attributes it to two factors. The first is the centuries-old Christian doctrine that "the Savior was murdered by the Jews." According to the late Southern journalist, W. J. Cash, "All the protests of scholars have been quite unavailing to erase from the popular mind the notion that it was the Jew who crucified Christ." (Dinnerstein, pp. 68-69)
The second factor is the scapegoat syndrome, by which socially, economically, or emotionally deprived individuals or groups fix the responsibility for their plight upon a defenseless minority. No inhabitants of the United States during this period were more insecure, harassed, indigent, paranoid, and nationalistic than those living below the Mason-Dixon line. And the most depressed and frustrated of the lot, to quote C. Vann Woodward, were urban workers, whose "age-long and eternally losing struggle against a hostile industrial economy" made them especially receptive to "exciting crusades against more vulnerable antagonists: against anything strange, and therefore evil," such as the iconoclastic Jew. (Dinnerstein, pp. 69-70)
In a letter to Louis Marshall, president of the American Jewish Committee, the organization founded in 1906 to aid Jews "in all countries where their civil or religious rights were endangered or denied," David Marx, rabbi at Frank's Hebrew Benevolent Congregation, compared the condemned man's grievous situation to that of French military officer Alfred Dreyfuss. In 1890 Dreyfuss's conviction for treason was reversed when he was shown to have been a victim of anti-Jewish prejudice. (Dinnerstein, pp. 62-63, 74)
Marx wrote, "The feeling against the D___ Jew is so bitter that the jury was intimidated and feared for their lives, which undoubtedly would have been in danger had any other verdict been rendered." (Dinnerstein, p. 74)
Marx followed up his correspondence with a trip to New York and a personal plea to Marshall. While sympathetic, Marshall expressed concern that Northern and Jewish intervention risked arousing the resentment of Southerners; he preferred to work behind the scenes "in a quiet, unobtrusive manner to bring influence to bear on the Southern press." (Oney, p. 348)
A visit to the powerful Jewish publisher of the New York Times, Adolph S. Ochs, was even less encouraging. In the words of his editorial assistant, Garet Garrett, Ochs was determined not to let the Times become "a Jewish newspaper." Garrett contacted his Atlanta stringer, who reported that "there was a lot of anti-Jewish feeling against Frank, and that the worst thing for him that could happen would be for the Jews to rally to him, as Jews." (Oney, pp. 346-347)
On October 1, 1913, Frank's attorneys -- Luther Rosser, Reuben Arnold, and Herbert Haas -- released their amended motion for a new trial. An appeal in a capital case could be based only on errors in law and not on the validity of the evidence. Therefore the document's 115 points focused on "procedural irregularities," such as the embellished diagram of the pencil factory, the repeated denigration of Frank's character, and the numerous improprieties included in Solicitor Hugh Dorsey's closing remarks. (Oney, pp. 349-350)
Attached were affidavits from bystanders who said that not only had the jurors observed rude displays of pro-prosecution sentiment from the courtroom audience, some had even been accosted by outsiders during recess periods. (Oney, p. 352)
Most shocking were allegations that two members, Marcellus Johenning and Atticus Henslee, had, as headlined by the Atlanta Journal, "Gone on the Jury Prejudiced." A coworker recalled a conversation in which Johenning said of Frank, "I know he's guilty." And two days after the grand jury handed down its indictment, Henslee was heard to refer to Frank as "that God damn Jew," and to proclaim at the downtown Elk's Club, "They ought to take him out and lynch him, and if I get on that jury I'll hang that Jew for sure." (Oney, p. 350)
Solicitor Dorsey would counter with his own file of testimonials. According to jury foreman Fred Winburn, not only was the embattled Henslee not biased against Frank, he had been the panel's lone holdout against conviction on the first ballot. Other jurors refuted the charges against Johenning and denied hearing or being influenced by outside agitators. (Oney, pp. 356-357)
Ignoring Georgia's constitutional prohibitions, at the October 12 hearing before Judge Leonard Roan, Rosser and Arnold reiterated the facts of the case as they saw them. Jim Conley was an admitted liar and a perpetual criminal whose initial statement was so rife with improbabilities that the police and Solicitor Dorsey himself had to reshape it. Sightings of Frank between 1:00 PM and 1:20 PM on the day of the murder left him and Conley not enough time to dispose of the body. The murder notes, "idiotic and ridiculous and inconceivable to the intelligent brain," were "negro scribblings from beginning to end," and contained language that obviously implicated Conley as the sole author and perpetrator. (Oney, pp. 358-360)
Arnold asserted that anti-Semitism had motivated law enforcement's zealous pursuit of Leo Frank and the general antipathy which had been directed against him. Rosser accused the prosecution of forever branding Frank a sexual pervert in the eyes of the jurors by introducing Conley's "maliciously false filthy tale." (Oney, pp. 361, 363)
In response, Solictor Dorsey complimented Reuben Arnold on his eloquence, but reminded Judge Roan that most of it was irrelevant, as he was charged with considering only three questions: bias on the part of the jury, the spectators' cheering and demonstrations, and Conley's evidence regarding the defendant's moral conduct. Dorsey upbraided Arnold with the ringing declaration that, "The people were not aroused against Leo M. Frank because he is a Jew but because he is a criminal of the worst type." (Oney, p. 362)
On October 31 Judge Roan ruled against the defense, yet with serious misgivings. "I have thought about this case more than any other I have ever tried," he told the assemblage. "But I do not have to be convinced. The jury was convinced . . . I feel it is my duty to order that the motion for a new trial be overruled." (Oney, p. 364)
More than duty may have weighed on the judge. He purportedly confided to a friend that had he granted the defense's request, the Governor would "not have had enough troops to control the mob," which would certainly have gathered as the news spread. (Dinnerstein, p. 80)
The judge's equivocation gave some measure of hope to Frank's allies, since, in the words of one, Herbert Haas, "Our Supreme Court has held more than once that it will reverse the judgment of a lower court declining a motion for a new trial where . . . the presiding judge himself is in doubt as to the guilt of the defendant." (Oney, p. 365)
In this case, however, it was not to be. After two months of deliberation, on February 17, 1914, the Georgia Supreme Court rejected Frank's appeal by a four-to-two vote. Writing for the majority, Justice Samuel Atkinson dismissed the charges of prejudice against Johenning and Henslee, found that the various outbursts interrupting the proceedings did not impugn their fairness, declined to interfere because of the trial judge's oral expression of opinion, and ruled that Conley's explicit testimony was material and relevant in that "it tended to show a practice, plan or scheme on the part of the accused to have lascivious or adulterous association with certain of his employees and other women at his office or place of business." (Dinnerstein, pp. 81-82)
With Frank's fortunes seemingly at low tide, a series of startling revelations would suddenly generate renewed optimism.
As reported in the Atlanta Journal, state biologist Dr. Henry Harris had concluded after a microscopic examination that the strands of hair discovered in the National Pencil Factory lathe had not come from the head of the victim, and indeed had notified Solicitor Dorsey of this fact prior to the trial. (Oney, p. 371)
Albert McKnight, the husband of Minola, the Frank family cook, now swore that, at the behest of his employer, Beck and Gregg Hardware, he had concocted his tale regarding Frank's failure to eat lunch at home the day of the crime and his subsequent hasty departure, and that he had not seen Frank "at any time or place on Saturday, April 26, 1913." (Oney, p. 372)
George Epps, Mary Phagan's fifteen-year-old-friend, now admitted that he had encountered Mary on the trolley on the day of the murder but had barely spoken to her, and that Detective John Black had invented the charge that Mary had sought young Epps's protection from Frank's unwanted advances. (Oney, p. 373)
A new member of the defense team, Henry Alexander, immersed himself in the murder notes and determined that the yellow preprinted order sheet on which the longer of the two had been scrawled was four years old, had been carted to the cellar in 1912, and could not have come from a pad in Frank's office. Further, the term "night witch" referred not to the night watchman, Newt Lee, as had been universally assumed, but to a negro superstition which would have been known only to Conley and not to a white man like Frank. (Oney, pp. 378-379)
On February 18, having been lobbied relentlessly by Louis Marshall, New York Times publisher Adolph Ochs committed his troops to the battle for Leo Frank's exoneration. Within three weeks his "paper had run 25 articles on the case (nine on page one), elevating what had been a drama little known beyond Georgia's borders into a topic of national import." In one interview, Luther Rosser articulated what would become the nascent campaign's call to arms: "I really believe if Frank had been the son of a reputable Gentile, he never would have been arrested." (Oney, pp. 373-374)
Also entering the fray was an equally potent force, Chicago advertising magnate Albert Lasker, who would apply to this cause the same promotional genius that had made Budweiser beer, Goodyear tires, Quaker Oats, and Sunkist orange juice household names. Detraining in Atlanta around March 1, Lasker immediately went to work -- soliciting funds from his many wealthy friends and acquaintances, hiring the famous private detective William Burns, and coining the phrase that would punctuate Frank's increasingly public pronouncements: "The Truth Is on the March." (Oney, pp. 375-377)
From across the South -- from Baltimore to Mobile to Richmond to Little Rock -- and then throughout the state of Georgia shouts were heard for a new trial, until finally the Atlanta Journal lent its voice to the chorus. "A degree of frenzy almost inconceivable," it editorialized, had led the city to demand a scapegoat for the murder of Mary Phagan, and when Conley offered up Frank, the public suspended disbelief. "The courtroom and streets were filled with an angry crowd ready to seize the defendant if the jury had found him not guilty." Under such "indescribable conditions," Frank's execution would "amount to judicial murder. In the name of Justice and in the name of the good people of the State of Georgia . . . let this man be fairly tried." (Oney, pp. 382-383)
The Journal's reveille, however, raised the hackles of the man who would become Leo Frank's most formidable foe, the populist firebrand Tom Watson, whose own weekly publication, the Jeffersonian, had achieved Biblical stature among rural Georgians. Watson's grudge with the Journal stemmed from a personal animus toward its former owner, U. S. Senator Hoke Smith. Seven years earlier, then Governor Smith -- whose election Watson had facilitated -- denied a pardon to a Watson loyalist under sentence of death. Ever since this betrayal, "Watson's desire to bring disgrace upon Smith [had] become an obsession . . . If the Journal was for Frank, then the Jeffersonian would be against him." (Oney, pp. 383-384)
"Tom Watson was equal parts stem-winding stump speaker, defense lawyer, poet, popular historian, sentimental defender of the Old South, and seer of an unlikely New South." Elected to Congress in 1890 as a champion of poor white farmers and negroes -- twin victims of Dixie's elite -- he renounced the Democrats two years later and proclaimed himself a Populist. Robbed of reelection by Democratic chicanery in 1892 and 1894, he suffered further embarrassment as a two-time loser on the Populist national ticket -- running for vice-president in 1896 and for president in 1904. (Oney, p. 8)
He thereupon abandoned his negro constituency -- along with his principles of egalitarianism and humanitarianism -- and took up the Lost Cause of southern honor and orthodoxy, regularly vilifying northern financiers for subjugating his native brethren and demonizing insidious foreigners, including the Pope, for ravishing their women and corrupting their morals. (Oney, p. 8; Dinnerstein, p. 96)
Thriving upon the ignorance and prejudices of the countrified masses, Watson had a fanatical following, most of whom accepted his preachments as gospel. The Leo Frank tragedy offered him an unprecedented opportunity, and he seized it with merciless rage. Within eighteen months the Jeffersonian's circulation soared from 25,000 to 87,000, earning Watson weekly profits of $1000. (Dinnerstein, p. 119)
If the bulk of his March 19 opening salvo was devoted to excoriating Senator Smith's "personal organ," the Journal, for "bringing the courts into disrepute . . . and destroying the confidence of the people in the orderly process of the law," for his finis Watson posed two questions that signaled his imminent crusade: "Does a Jew expect extraordinary favors because of his race?" and "Who is paying for all this?" (Dinnerstein, p. 97)
As Frank's counsel prepared to deploy its next legal weapon -- the extraordinary motion for a new trial, which would be heard by Judge Benjamin Hill -- they inadvertently undermined their efforts by succumbing to the preening egotism of William Burns. Christened the world's greatest detective for tracking down the Los Angeles Times building bombers in 1911, Burns was brash, cocky, and flamboyant; arriving on the scene, he lost no time in flaunting such announcements as "I am utterly confident of success," and "I know who is the murderer of Mary Phagan." Within six weeks the vacuity of these boasts would be painfully exposed. (Oney, p. 386)
The two tantalizing pieces of evidence Burns did manage to unearth proved to be more harmful to Frank than beneficial -- and more ammunition for Watson's cannon.
The first consisted of forty-nine pages of correspondence between Jim Conley and a female inmate named Annie Maude Carter. Conley's vile language, graphic sexual imagery, and unnatural fixation on Annie's enticing hips and broad posterior undeniably stamped him in Burns's mind as the true deviant if not the culprit, since Annie swore that Conley had admitted his guilt in a private conversation. It didn't take long, however, for Solicitor Dorsey to obtain from Annie a repudiation of the letters and a retraction of the confession, which opened the gate for the wily Watson to attack Burns as ill-informed on the nature of racial libido and, by implication, damn Frank. "Is it not possible," he expounded, "that the Great Detective does not know . . . [that] the excited barbarian, like the brutish negro, may commit bestiality; but it is the degenerate of wealth and culture who commits sodomy." (Oney, pp. 390-391, 400, 415)
The second stunner was an affidavit from Reverend C. B. Ragsdale, pastor of the Plum Street Baptist Church, who allegedly overheard the day after the murder one negro say to another, "I am in trouble and I want you to help me out. I killed a girl at the National Pencil Factory." But within days the Reverend backtracked, stating that the tale had been devised by Burns and his operatives, who were "just handing money out."(Oney, pp. 396, 398)
Such antics reinforced the impression that huge sums -- much of it transshipped from Northern Jewish coffers -- were being spent to save the accused. And the embodiment of these interloping forces seeking to subvert justice, fulminated Watson, was William Burns, who, "when he comes to Georgia and begins to work on witnesses who have already testified under oath, and when he uses threats, IF NOT BRIBES, to prevail upon them to change their evidence, he makes himself a criminal." (Oney, p. 397; Dinnerstein, p. 104)
Having dispensed with Annie Maude Carter and Reverend Ragsdale, Solicitor Dorsey launched a systematic assault on the extraordinary motion. A parade of female factory workers did a second about-face, and disavowed that they had been coerced into making false accusations of sexual impropriety against Frank or had done so unwittingly. Albert McKnight revealed having been told by Burns associate C. W. Burke that unless he was more cooperative "the Jews would get him." George Epps said he had been similarly intimidated. Several witnesses testified that the order pad on which one of the murder notes had been written had been moved to the basement, contradicting the research of Henry Alexander. (Oney, pp. 404, 405, 413, 415)
Finally Dorsey delivered his coup de grace, eliciting from Detective Burns that he had not read the court transcript, only the Brief, that he had interviewed only a handful of witnesses (all of whom had been put forth by the defense), and that he had conspired to have Annie Maude Carter removed to New Orleans after securing her affidavit. (Oney, pp. 408-409)
So thoroughly had Dorsey dominated his opponent that Judge Hill advised him that no summation was necessary, and forthwith denied the extraordinary motion. (Oney, p. 419)
Louis Marshall lamented that "the whole business has been terribly botched," that the lawyers "have not at all times acted with good judgment," and that the "ridiculous methods" of Burns has brought a "meritorious" case "to the point of destruction." Marshall urged Frank's partisans to deemphasize religious prejudice, warning, "There is too much of a tendency on the part of our people to attribute everything to anti-Semitism." (Dinnerstein, p. 106)
As the summer of 1914 wore on and the European crisis replaced Leo Frank on the front pages of Georgia's dailies, a major player in the drama, William Smith, the idealistic young lawyer who had represented Jim Conley and had obtained for him a one-year sentence as an accessory to the crime, experienced a remarkable change of heart.
Prompted by Detective Burns and a lifelong friend named Berry Benson -- an Augusta resident, Civil War memoirist, and amateur cryptographer -- and assisted by his wife Mary Lou, a schoolteacher, Smith undertook a detailed analysis of the trial record, the Carter letters, and the murder notes. After weeks of study, Smith deduced that Jim Conley was more intelligent and literate than he had led people to believe, that the language of the notes was altogether consistent with that employed by Conley in his oral communications, and that Frank could not possibly have dictated the notes in such language in the two-and-a-half minutes ascribed to him by Conley. (Oney, pp. 424-433)
Further, during a visit to the pencil factory, Smith and his wife demonstrated that a scream from the metal room could not be heard in the lobby -- which implied, of course, that Conley had lied about that also. (Oney, pp. 427-428)
Smith's efforts, however, were unavailing -- he met with the Atlanta Police Department and Solicitor Dorsey to share his findings -- and in fact ignited a barrage of death threats and a fusillade of condemnation from Watson's Jeffersonian, which chastised him as a traitor to his client. (Oney, pp. 433-434, 438-439)
A scourge of setbacks swiftly descended upon Frank and his defense team -- which now comprised Herbert and Leonard Haas, Henry Alexander, and the firm of Tye, Peeples, and Jordan, trial participants Rosser and Arnold having been dispatched to the sidelines.
On October 14 the Georgia Supreme Court rejected their second request for a new trial. Thirty days later it upheld Judge Hill's adverse ruling on the constitutional motion which had been drafted by Tye and Peebles back in the spring; in it they argued that Frank's enforced absence during the reading of the verdict (which Judge Roan had proposed in the interest of security) invalidated the proceedings. The Court concurred with Solicitor Dorsey's contention that not only had Frank's attorneys acquiesced to the agreement, they had failed to protest in a timely manner. (Oney, p. 446)
On November 21 the Court refused to certify a writ of error that would facilitate a U. S. Supreme Court review of the ruling on the Tye-Peebles motion. (Oney, p. 447)
Subsequent appeals directly to U. S. Supreme Court Justices Joseph Lamar and Oliver Wendell Holmes met similar fates. While both adjudicated that the point raised involved only a state procedure, Holmes made headlines by questioning whether Frank had enjoyed due process of law, as his trial had taken 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." (Dinnerstein, p. 109)
On December 7 one final petition for a writ of error to the entire sitting U. S. Supreme Court was denied. (Oney, p. 452)
Holmes's comments and the continuing legal maneuvers stirred the sympathies of the national press. In its December 17th and 23rd issues, Colllier's Weekly published in two parts an 18,000-word essay on the Frank case researched and written by Christopher Powell Connolly. The tenacious muckracker had become nationally renowned for his coverage of the trials of IWW leader Bill Haywood for the murder of Idaho governor Frank Steunenberg and of the McNamara brothers for the bombing of the Los Angeles Times building. (Oney, pp. 444-445)
It was prejudice against the "fire-breathing, murderous Jew portrayed by Marlowe" in The Jew of Malta that had focused suspicion on the "shy, nervous, stoic" Leo Frank, wrote Connolly; and it was the political wrangling between the local press and police and the unstinting pressure on the Pinkerton Detective agency, whose reputation was at stake, that had girded his frame-up. As for Frank's conviction, it could be laid wholly at the feet of Jim Conley, who had obviously perjured himself. (Oney, p. 453)
If the deed had been performed in the second floor office, where was all the blood from a victim brutally abused? Instead, Mary Phagan had walked down to the lobby, where Conley lurked in hiding near a convenient trap door and shaft leading to the basement. Conley wrote the infamous notes to implicate another negro employee. And finally, if Frank and Conley had transported the body by means of the elevator on Saturday, the excrement Conley admitted depositing that morning would have been crushed, rather than on Sunday, when the investigators noticed a foul odor upon their own descent. (Oney, pp. 454-455)
Tom Watson was predictably outraged, and denounced the outside forces which were "spending half-a-million dollars to save the rich Jew from the legal consequences of premeditated and horrible crime." (Oney, p. 455)
The Collier's piece awakened the entire nation to the controversy, and its impact on public sentiment was palpable. In New York, the World, the Herald, and Hearst's flagship, the Journal, were wholeheartedly in Frank's camp. "December 14 found the New York Times in the midst of an all-out drive of the sort it had never undertaken before. Only three days during the month did it not publish an article on Frank," with each one's "overriding intention to arouse indignation and stimulate action." (Oney, pp. 456-457)
Frank's defenders had one last weapon at their disposal -- a hearing for a writ of habeas corpus before the United States Supreme Court. Now they would claim that Frank had been deprived of due process of law not because he had involuntarily absented himself at the reading of the verdict but because the hostile attitude of the court spectators had necessitated it. Further, the writ of habeas corpus gave the U. S. District Court "the discretion and latitude to examine and determine whether a state court has lost jurisdiction." (Dinnerstein, p. 110; Oney, p. 456)
When Northern Georgia District Court Judge William T. Newman denied the petition, maintaining that state authority prevailed, counsel's last recourse was a direct appeal to U. S. Supreme Court Justice Joseph Lamar. And that counsel was now Louis Marshall, who, having seen too many lawyers acting discordantly, had arrived in Atlanta to assume sole responsibility for Frank's fate. (Oney, pp. 458, 451)
On December 28 Judge Lamar made the surprising announcement that the U. S. Supreme Court should hear the writ. He reasoned that the Court had never determined whether a defendant in a murder trial could legally waive his right to be present at all times nor whether the failure to raise such an absence in an appeal to a state court precluded him from doing so at a later date. (Dinnerstein, pp. 110-111)
Well aware that granting the writ of habeas corpus would require the Court to make Frank a free man -- a political impossibility -- Marshall carefully crafted his brief as a request for a new trial. But ultimately the Justices would deem the arguments of Solicitor Dorsey and Georgia Attorney General Warren Grice more compelling; after two months of deliberation, on April 19, 1915, they upheld Frank's conviction by a seven-to-two vote. (Dinnerstein, p. 112)
In his majority opinion, Justice Mahlon Pitney wrote that "the allegations of disorder were found by both of the State courts to be groundless except in a few . . . irregularities not harmful in fact to the defendant," that Frank had waived his right to contend a denial of due process by failing to object at the proper time, and in fact, "since the State may . . . abolish trial by jury, it may limit the effect to be given to an error respecting one of the incidents of such a trial [such as the defendant's presence at all times]". (Dinnerstein, p. 112)
Justices Holmes and Charles Evans Hughes dissented. Examining the records and commenting on Judge Roan's expressed doubt, they thought "the presumption overwhelming that the jury responded to the passions of the mob," that "mob law does not become due process of law by securing the assent of a terrorized jury," and that under no stretch of judicial imagination could they presume that Leo Frank had received a fair trial. (Dinnerstein, pp. 112-113)
One avenue remained to save Frank's life -- an appeal for executive clemency to the state Prison Commission, which would make its recommendation and then forward it to the governor. (Oney, p. 471)
But just who would that person be: the incumbent John Slaton, or his successor, Nathaniel Harris, who was scheduled to assume office on June 26?
Slaton had been elected in 1912 "on a tidal wave of general enthusiasm unprecedented in Georgia's annals"; in 1915 he was at the peak of his popularity. Aspiring to a seat in the U. S. Senate, which was attainable only with the blessing of Tom Watson, Slaton had reason to believe his political future would be jeopardized should he alter the court's decision. As the former law partner of Luther Rosser -- the two had merged their firms in 1913 -- he could have recused himself. Instead, his keen sense of justice and a courageous unwillingness to shirk the responsibilities of his office vanquished a safer pragmatism and kept him on notice. (Dinnerstein, pp. 122-124)
Throughout the ordeal, he had adhered to a consistently evenhanded position, stating that when the hour struck, "he would be guided solely by the merits of the case and his own conscience." He stressed that the prisoner's religion would have no bearing on his thinking. Mindful of such professed impartiality and acting upon the advice of Hearst journalist Arthur Brisbane, Frank's brain trust came to believe that Slaton offered the better chance for their client's survival. (Oney, p. 472)
Which is why Marshall expedited the release of the Supreme Court mandate fourteen days earlier than was customary -- which allowed Judge Hill to set Frank's execution for June 22. (Oney, p. 473)
The approaching finality engendered a surge of support for Leo Frank. The highly-acclaimed soprano, Geraldine Farrar, one of the nation's most glamorous women, visited the condemned man and his wife in his Atlanta jail cell and wired the New York Times that unequivocally he was incapable of murder. The governor's office was flooded with more than 100,000 letters imploring him to commute Frank's sentence; many bore the mastheads of U. S. Senators, other state governors, and college presidents. Petitions containing over two million signatures poured into Georgia from the far reaches of the union. The Times published seven pro-Frank editorials during the month of May. Closer to home, the Atlanta Journal and the Augusta Chronicle endorsed clemency. (Oney, pp. 474-478)
The defense turned to widely-respected advocate William Schley Howard to make its case, but to no avail. A letter from trial judge Leonard Roan expressing his doubts about the verdict and Frank's guilt, pleas from eminent citizens both North and South, Lucille Frank's poignant affirmation of her husband's righteousness as she sat sobbing in the front row while her words were read, a review of William Smith's dissection of the murder notes, an emotional and historical validation of the executive power to pardon -- all failed to convince the prison commissioners, who rebuffed Frank's petition for commutation of the death sentence by a two-to-one vote. (Oney, pp. 481-484)
One week later, at 9:00 AM on Saturday, June 12, 1915, in the packed anteroom of his capitol office in downtown Atlanta, Governor Slaton called the final hearing on the Frank case to order. (Oney, p. 489)
Speaking first, Schley Howard broached for the first time the relevance of the smashed excrement detected by the investigators when they descended to the basement on Sunday -- proof that Conley and Frank had not used the elevator to move the body on Saturday. He enumerated nineteen elements of the case, excluding the charges made by Conley, and gave an explanation for each one more consistent with Frank's innocence than his guilt -- calling particular attention to the matter of Frank's nervousness on the morning he was called from his home, which, he said, was a perfectly natural psychological state. William Smith's report on the murder notes, he reiterated, provided a "mathematical demonstration" that they were the mental property of Conley. He speculated that the very act of transcription demanded of Conley by his interrogators planted the idea in his mind of laying the blame on Frank by serving as his "amanuensis." (Oney, pp. 489-490, 498)
When his turn came, Solicitor Dorsey maintained that Frank had received a fair trial, "that at no time from its beginning to its end did anybody cry out against Frank or offer to do him harm." He insisted that the evidence against Frank, minus Conley's testimony, was sufficient to convict him -- his scandalous reputation, the blood and hair which had not been seen in the factory until Monday, the witness to his empty office at twelve noon on the day of the murder, his suspicious behavior the next day. (Oney, pp. 493-494)
In the midst of the hearing, Governor Slaton made a visit to the pencil factory to inspect personally the office where the notes were allegedly written, the lathe handle where the strands of Mary Phagan's hair had been discovered, the spot in the basement where the body had lain, and the elevator shaft where the all-important feces had been deposited. (Oney, p. 495)
For four days Slaton secluded himself in his private mansion and pored over the voluminous court documents, legal briefs, and judicial pronouncements which had accumulated over the past two years. "I left no stone unturned," he confided afterward. "I went over it again and again from every point of view." (Dinnerstein, p. 125)
Tom Watson having warned that, in the event of a reversal, "there will almost inevitably be the bloodiest riot in the history of the South," before announcing his decision, Slaton wanted Frank safe from the wrath of Atlanta's mobs. Around 10:00 PM on June 20, while one diversionary car was left running in front of the Fulton County jail, the sheriff and six deputies escorted Frank to a back alley exit, shoved him into another car, rushed to Atlanta, and boarded a midnight train to Macon. Arriving at 3:00 AM, they drove the remaining twenty-five miles to the prison farm at Milledgeville. (Dinnerstein, pp.119, 126)
Almost simultaneously Slaton was telling his wife, "It may mean my death or worse, but I have ordered the sentence commuted," to which she replied, "I would rather be the widow of a brave and honorable man than than the wife of a coward." (Dinnerstein, p. 126)
In a twenty-nine page commentary, the Governor spelled out the reasons for his decision. The power of his fabrication of details notwithstanding, Jim Conley, he wrote, was "as depraved and lecherous a negro as ever lived in Georgia," and had not told the truth. The presence of the formed feces at the bottom of the shaft Sunday morning was a fatal blow to Conley's gruesome narrative involving the elevator on Saturday. The similarities in syntax and phraseology between the murder notes and Conley's other known writings and utterances clearly identified him as their author. The absence of blood in the workroom, on the lathe, on the floor, in the elevator, or on the steps leading downstairs suggested that Mary Phagan -- who had suffered a severe injury to the head -- had been killed in the basement where her body had been found. (Dinnerstein, pp. 127-128)
"Feeling as I do about this case," Slaton told the press, "I would be a murderer if I let that man hang." (Oney, p. 503)
And a few days later, at his successor's inauguration, he delivered this memorable summation to a luncheon gathering: "Two thousand years ago another Governor washed his hands of a case and turned a Jew over 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." (Oney, p. 511)
If jubilation greeted Slaton's leniency in many quarters, a vocal majority of Georgians were outraged, and burned him in effigy. Swarms of protestors marched through the streets of Atlanta chanting, "We Want John M. Slaton, Georgia's Traitor Governor." Slaton had no choice but to declare martial law, and call up a battalion of militia to defend his home from a barrage of stones and bottles and a 75-man attack force armed with blackjacks, guns, and dynamite. (Dinnerstein, pp. 129, 132-133)
In his first issue of the Jeffersonian after the commutation, Tom Watson lambasted Watson for raping "our grand old Empire State," decried that its noble sons and daughters had been debased, bought, and sold by "Jew money," and threatened: "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." (Oney, pp. 507-508)
Watson's clarion call would not go unheeded. In Mary Phagan's home town of Marietta, a conspiracy was brewing. Six of its most reputable and influential citizens were proposing the well-nigh impossible: abduct Frank from the heavily guarded prison farm in Milledgeville, transport him across multiple jurisdictions, including the city of Atlanta, on mostly unpaved roads back to Marietta, and hang him in plain view. (Oney, p. 513)
They were renegade spirits, defiant of authority, self-righteous agents self-selected to correct a gross miscarriage of justice: Herbert Clay, son of a U. S. Senator, charismatic, irresistible to women, susceptible to drunken rampages (for which he had been expelled from college), affably persuasive, circuit solicitor general at 34; John Tucker Dorsey, Hugh's cousin, big, bearish, magnetic, convicted of bludgeoning a man to death in 1905, a talented trial lawyer who could mesmerize a jury, recently elected to the state legislature; Fred Morris, strong and swift, a three-sport athlete at the University of Georgia, Boy Scout leader, former defender of a negro boy accused of rape; Bolan Brumby, heir to his father's furniture manufacturing business, epitome of arrogant Southern aristocracy, to whom Northerners were an abomination; former governor Joseph Brown, still indebted to Tom Watson for the special Jeffersonian campaign edition that had won him the nomination; and finally Judge Newt Morris, ruthless, intimidating, calculating, unprincipled property developer and contractor, cattle rustler, once indicted for attempted murder, political enemy of John Slaton, opportunistic aspirant for higher office. (Oney, pp. 514-524)
They were the organizers, and would not soil their hands. Instead they would recruit three field commanders -- Black Newt Morris, staunchly loyal to his cousin Judge Newt, foreman of his construction company and of the Cobb County convict camp; Gordon Gann, lawyer protege of Judge Newt; and Gordon Daniell, well-connected jewelry-store proprietor, Rotarian, and hillbilly band leader -- and twenty-five foot soldiers to carry out the mission. (Oney, pp. 525-528)
For Leo Frank, who had arrived at Milledgeville sickly, pale, and thin from his two-year confinement in a dank Atlanta jail cell, life had improved considerably. Most of the one thousand men and women incarcerated there were aged, infirm, or products of privileged backgrounds. Sanitary conditions were good for white male prisoners; the atmosphere was healthy. (Oney, pp. 529-530)
After rising early and spending several hours on simple chores, mostly cleaning, Frank devoted the rest of the day to his prolific correspondence -- writing as many as twenty letters a day, to his wife Lucille, requesting snack food and sundries, to strangers thanking them for their sympathy and support, and to attorneys and dignitaries expressing hope for the future. (Dinnerstein, p. 137)
This idyllic sojourn continued for four weeks until, on the night of July 17, a convicted murderer named William Creen rose from a nearby bunk, crept to Frank's bedside, pinned him to his mattress, and opened a seven-and-a-half inch gash in his throat with a butcher's knife. Only the heroic actions of the two inmate doctors who carried Frank to the prison hospital and applied a ligature to his severed external jugular vein kept him alive until a physician could arrive to operate and suture the wound. (Oney, pp. 546-547)
Frank would recover -- "I must live. I must vindicate myself," he told one of his attending doctors -- but he was still unable to speak to Governor Harris (Slaton's successor) and his panel when they came to the prison to investigate the incident. Satisfied that Creen had acted of his own accord -- in order to forestall an attack on Frank that would endanger other inmates, he claimed -- Harris then announced to the assembled press that he was appalled by the dangerous overcrowding and lack of adequate sewage disposal in the negro dormitories and that he would be requesting a $50,000 appropriation from the state legislature. (Oney, pp. 550, 554, 538)
At the governor's side was the newly-appointed chairman of the legislature's penitentiary committee, John Tucker Dorsey; he already had the three prison commissioners beholden to him. On a previous inspection, Dorsey had absolved them of any blame for the "deplorable conditions," and had himself promised to secure the necessary funding to make improvements -- which he fulfilled in the amount of $30,000 four days after the Creen probe. (Oney, pp. 543-544, 556)
The commissioners' acquiescence, if not complicity, having been sealed with a bond of bribery, the Marietta cabal shouldered their arms and swung into action.
One month earlier their best-laid plans had been thwarted when, in response to an anonymous tip, Governor Harris had mustered the state militia. This time, however, they were not to be denied. (Oney, p. 544)
"The vigilantes needed only ten minutes to abduct the nation's most celebrated prisoner." Traveling by different routes, carrying rifles, pistols, wire cutters, explosives, and a manila rope already knotted into a noose, they rendezvoused outside the prison walls on the night of August 16, 1915. They cut the telephone lines, subdued and handcuffed Superintendent J. M. Burke and Warden J. E. Smith, made their way to Frank's private convalescent room, dragged him outside, threw him into one of the waiting cars, and sped off through the darkened cotton fields of North Georgia. Not a shot was fired. (Oney, pp. 561-562)
Four times during the one-hundred-fifty mile journey Frank was asked if he had anything to say before his execution. Twice he made no reply; twice (the first and last in turn) he said quietly, "No." (Oney, pp. 563-564)
The lynch party arrived at Frey's Gin two miles east of Marietta just as dawn was breaking, and marched Frank two hundred feet to a small grove of trees. They "blindfolded him, bound his feet together, cinched a khaki cloth around his exposed lower torso, lifted him onto a table that had been brought to the site, and placed the noose over his head." (Oney, p. 565)
"After agreeing to return Frank's wedding band to Lucille, a man identified in most reports as simply 'the leader' pronounced the court's sentence and kicked over the table. The time was 7:05. The man was Judge Newt Morris." (Oney, p. 565)
"Frank did not die instantly. Rather, he suffocated slowly, struggling so ferociously he ripped open his neck wound, causing blood to ooze down his shirtfront." (Oney, p. 566)
"Hordes of people made their way to the oak tree where the lifeless figure . . . swayed in the wind." (Dinnerstein, p. 143)
"By 8:30, over one thousand had gathered, and scores more were arriving each minute." (Oney, p. 566)
Wrote the Georgian's O. B. Keeler: "In a terrible way it was like some religious rite . . . a sort of dreadful pilgrimage . . . Among the men there was evident a grim and terrible satisfaction . . . Said one woman, 'It is the justice of God.' " (Oney, pp. 566-567)
When half-crazed Robert E. Lee Howell shrieked, "We are not going to let the undertakers have it! We are going to burn it!" it was Newt Morris who urged the frenzied crowd to allow the dead man a decent burial. But as the corpse was being trundled away, Howell knocked it over, and began stomping on the face and grinding it into the ground. Once again Morris intervened, rescued the body, and accompanied it partway to Atlanta, where another vast throng waited to satisfy their blood lust. By dusk, more than 15,000 morbid curiosity-seekers had filed past the battered remains as they lay on a makeshift bier in the front room of the Greenburg and Bond funeral home. (Oney, pp. 568-571)
The lynching of Leo Frank occupies a singular place in American history. It is the only lynching in which the victim was a Jewish person and in which anti-Semitism was a factor. It is the only lynching in which the victim was seized from a state prison (as opposed to a local jail) and in which he was carried over a long distance before he was killed. It is the only lynching not to occur within hours or days of the victim's falling under suspicion. It is the only lynching that can justifiably be deemed "state-sponsored," since government officials were deeply involved in its planning and consummation. (Wilkes)
Lucille Frank was not about to have her husband interred in the state where he had suffered such a hideous end. She had him transported to Queens, New York, where he was buried in the Mount Carmel Cemetery on Friday, August 20. (Oney, p. 576)
After meeting with the prison commissioners to determine exactly what had transpired that night in Milledgeville, Governor Harris reached the conclusion that "the guards never had a chance," and "to put up a fight would have been suicide." (Oney, p. 585)
A Cobb County grand jury hearing conducted by Herbert Clay and John Tucker Dorsey interviewed thirty-five witnesses before reporting that it "had been unable to find enough evidence to indict anyone for the lynching of Leo M. Frank." (Oney, pp. 588-589)
For his gallant performance at Frey's Gin, Newt Lee was lionized in the New York Tribune as the "soft-spoken youngish man in Marietta at whose words mobs drop their prey" and in the New York Times as "the only hero of the Frank lynching." (Oney, pp. 594-595)
Tom Watkins rode his anti-Semitic diatribes to Jeffersonian heights, increased magazine circulation, and political vindication. In 1920 he was elected to the U. S. Senate seat he had held thirty years earlier, and became an ardent advocate for the Soviet Union and a vociferous opponent of trusts, red-baiting, and militarism. He died of a cerebral hemorrhage in 1922. (Roche, p. 91)
With Watson railing against Northern meddling and disgruntled Georgians stoked to a fiery pitch, three months after Frank's death, fifteen hardy souls met at Atlanta's Piedmont Hotel, clambered aboard a bus to Stone Mountain, hiked up the granite summit, and watched inveterate fraternalist and failed preacher Colonel William Simmons set fire to a kerosene-and-tar-soaked cross. The new brotherhood would rekindle an old name, Knights of the Ku Klux Klan, and dedicate itself to defending Protestant orthodoxy and sexual morality, exalting Anglo-Saxon superiority, and resisting urbanization and foreign encroachment. (Oney, p. 607, Dinnerstein, pp. 149-150)
By that time the Anti-Defamation League of the Jewish fraternal order B'nai B'rith had already been in existence over two years -- having been founded four weeks after Leo Frank's trial. Its purpose was to combat prejudice in the United States, which, in the words of Adoph Kraus, president of the parent organization, "had 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." (Dinnerstein, p. 157)
Elected in 1916 for a five-year term, Hugh Dorsey earned a reputation as Georgia's most progressive governor of the era for authoring a radical study detailing 135 racial injustices; his corrective prescriptions were soundly rejected by the state legislature. (Oney, p. 614)
From 1920 to 1930 Jim Conley served ten years in prison for breaking and entering, after which he disappeared from public view. (Oney, pp. 612, 647)
In December 1982 eighty-five-year-old Alonzo Mann told Tennessee Lawyer John Hooker that on Saturday, April 26, 1913, a little after twelve noon, he opened the door to the National Pencil Factory, walked in, and saw Jim Conley with a girl in his arms. Conley said to him, "If you tell anything about this, I'll kill you." And he never did, for sixty-nine years. (Oney, p. 644)
Mann's deposition became the foundation for an application in 1983 for a posthumous pardon for Leo Frank. The Georgia Board of Pardons and Paroles would reject that application. Three years later, however, it would rule favorably on a different ground, not exonerating Frank, but finding that the state had denied him "his constitutional rights by failing to ensure his safety while he was incarcerated at the prison farm at Milledgeville." (Oney, pp. 645, 649)
So, who did kill Mary Phagan?
I believe the man who had the last word, the courageous Governor John Slaton, got it right. The contrived composition and bizarre context of the murder notes, the egregious discrepancies in the purported time frame in which the crime was committed, the curious incident of the shit in the shaft, the absence of blood at the site where Mary was supposedly struck down -- all point to Jim Conley as a compulsive yet clever liar. Putting aside all the conflicting character references, one is hard-pressed to take the word of a shiftless petty thief and drunk over that of a respectable businessman.
Sadly, however, all the facts and evidence, the arguments and legalities, are irrelevant. Because the racial, religious, regional, sexual, socioeconomic, and hysterical phantoms that bedeviled Leo Frank virtually guaranteed either of two equally grievous finales to this convoluted dual tragedy: his conviction by mob law or his execution by vigilante justice.
REFERENCES
Dinnerstein, Leonard. The Leo Frank Case. Athens, Georgia: University of Georgia Press, 1987.
Oney, Steve. And The Dead Shall Rise: The Murder of Mary Phagan and the Lynching of Leo Frank. New York: Pantheon Books, 2003.
Roche, John P. The Quest for the Dream: The Development of Civil Rights and Human Relations in Modern America. New York: The MacMillan Company, 1963.
Wilkes, Donald. "Wrongly Accused, Falsely Convicted, Wantonly Murdered," Flagpole Magazine (May 4, 2004), 7.
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