- 2 days ago
Sunday, July 6, 1913
*Editor's Note: See insert article, "Decisions Which May Aid Defense of Frank", at the conclusion of this post.
Frank Expects Freedom by Breaking Down Accuser's Testimony, and State a Conviction by Establishing Truth of Statements.
BY AN OLD POLICE REPORTER.
The developments in the Phagan case have been of late highly significant and interesting.
During the past week, it became evident that the very heart and soul of both the prosecution and the defense is to center largely about the negro, James Conley.
He is at once apparently the hope and the despair of both sides to the contest!
This circumstance, however, while tending to add much to the dramatic and the uncertain, in so far as the outcome is concerned, is not by any means an unusual thing in cases of this kind.
It frequently happens in mysterious murder cases that both the State and the defense must pin their faith to one and the same witness.
Of late there has been some talk of the Grand Jury indicting Conley, even over the Solicitor General's head, which, of course, it would have a perfect right to do.
The thought occurred to me some time ago that the case might take that direction, but in the article in which that point was discussed, I mentioned it incidentally, rather than as a likely thing.
Indictment may Mean Much.
It seems, nevertheless, that the idea of indicting Conley has had, and still may have, much more behind it than some people have been willing to admit, and that phase of the situation has caused me to speculate somewhat in detail today as to how and why Conley might be indicted.
I find that those who are urging it have much more to stand upon than would seem probable at first blush.
Two things are evident:
First, the defense will attack Conley vigorously.
Second, the character of Leo Frank will be put in issue by the defense, fearlessly and frankly!
These two things, I take it, will constitute the defense's primary challenge to the prosecution!
And if I be right about that, the issue will be thrilling and dramatic enough to satisfy the cravings of the most exacting, when the case comes on for trial later along this month.
About these two points of disagreement, Hugh Dorsey and Frank Hooper, on the one hand, and Luther Rosser and Reuben Arnold, on the other, will be on their mettle—and if the fur and likewise the fire doesn't fly, I mistake my guess at this writing!
Leo Frank has been indicted for the murder of Mary Phagan, and for reasons presumably unsatisfactory to the Grand Jury.
Points Against Conley.
Let's examine the points upon which the defense will indict Conley, if the Grand Jury fails to beat the defense to it—which yet is problematical.
The defense will contend:
(1) That Conley wrote of his own notion the notes found beside the dead girl's body.
(2) That the negro told of incidents and conversations which took place admittedly in the pencil factory an hour or more before he swears he went there.
*Editor's Note: See insert article, "Decisions Which May Aid Defense of Frank", at the conclusion of this post.
Frank Expects Freedom by Breaking Down Accuser's Testimony, and State a Conviction by Establishing Truth of Statements.
BY AN OLD POLICE REPORTER.
The developments in the Phagan case have been of late highly significant and interesting.
During the past week, it became evident that the very heart and soul of both the prosecution and the defense is to center largely about the negro, James Conley.
He is at once apparently the hope and the despair of both sides to the contest!
This circumstance, however, while tending to add much to the dramatic and the uncertain, in so far as the outcome is concerned, is not by any means an unusual thing in cases of this kind.
It frequently happens in mysterious murder cases that both the State and the defense must pin their faith to one and the same witness.
Of late there has been some talk of the Grand Jury indicting Conley, even over the Solicitor General's head, which, of course, it would have a perfect right to do.
The thought occurred to me some time ago that the case might take that direction, but in the article in which that point was discussed, I mentioned it incidentally, rather than as a likely thing.
Indictment may Mean Much.
It seems, nevertheless, that the idea of indicting Conley has had, and still may have, much more behind it than some people have been willing to admit, and that phase of the situation has caused me to speculate somewhat in detail today as to how and why Conley might be indicted.
I find that those who are urging it have much more to stand upon than would seem probable at first blush.
Two things are evident:
First, the defense will attack Conley vigorously.
Second, the character of Leo Frank will be put in issue by the defense, fearlessly and frankly!
These two things, I take it, will constitute the defense's primary challenge to the prosecution!
And if I be right about that, the issue will be thrilling and dramatic enough to satisfy the cravings of the most exacting, when the case comes on for trial later along this month.
About these two points of disagreement, Hugh Dorsey and Frank Hooper, on the one hand, and Luther Rosser and Reuben Arnold, on the other, will be on their mettle—and if the fur and likewise the fire doesn't fly, I mistake my guess at this writing!
Leo Frank has been indicted for the murder of Mary Phagan, and for reasons presumably unsatisfactory to the Grand Jury.
Points Against Conley.
Let's examine the points upon which the defense will indict Conley, if the Grand Jury fails to beat the defense to it—which yet is problematical.
The defense will contend:
(1) That Conley wrote of his own notion the notes found beside the dead girl's body.
(2) That the negro told of incidents and conversations which took place admittedly in the pencil factory an hour or more before he swears he went there.
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NewsTranscript
00:00Fagan case centers on Conley, Negro Lone Hope of Both Sides, the Atlanta Georgian Sunday, July 6,
00:061913. Editor's Note, see Insert Article, Decisions Which May Aid Defense of Frank,
00:12at the conclusion of this post. Frank expects freedom by breaking down accusers' testimony
00:16and state a conviction by establishing truth of statements, by an old police reporter.
00:22The developments in the Fagan case have been of late highly significant and interesting.
00:26During the past week it became evident that the very heart and soul of both the prosecution and the
00:31defense is to center largely about the Negro, James Conley. He is at once apparently the hope
00:37and the despair of both sides to the contest. This circumstance, however, while tending to add much
00:43to the dramatic and the uncertain insofar as the outcome is concerned, is not by any means an
00:49unusual thing in cases of this kind. It frequently happens in mysterious murder cases that both the
00:55state and the defense must pin their faith to one and the same witness. Of late there has been some
01:01talk of the grand jury indicting Conley, even over the solicitor general's head, which of course it
01:07would have a perfect right to do. The thought occurred to me some time ago that the case might
01:11take that direction, but in the article in which that point was discussed, I mentioned it incidentally,
01:17rather than as a likely thing. Indictment may mean much. It seems nevertheless that the idea of
01:23indicting Conley has had, and still may have, much more behind it than some people have been willing
01:28to admit, and that phase of the situation has caused me to speculate somewhat in detail today
01:33as to how and why Conley might be indicted. I find that those who are urging it have much more
01:38to stand
01:39upon than would seem probable at first blush. Two things are evident. First, the defense will attack
01:44Conley vigorously. Second, the character of Leo Frank will be put in issue by the defense,
01:49fearlessly and frankly. These two things, I take it, will constitute the defense's primary
01:54challenge to the prosecution, and if I be right about that, the issue will be thrilling and dramatic
02:00enough to satisfy the cravings of the most exacting when the case comes on for trial later along this
02:05month. About these two points of disagreement, Hugh Dorsey and Frank Hooper on the one hand, and Luther
02:11Rosser and Reuben Arnold on the other, will be on their metal, and if the fur and likewise the fire
02:17doesn't fly, I mistake my guess at this writing. Leo Frank has been indicted for the murder of Mary
02:23Fagan, and for reasons presumably unsatisfactory to the grand jury. Points against Conley. Let's
02:30examine the points upon which the defense will indict Conley, if the grand jury fails to beat the
02:35defense to it which yet is problematical. The defense will contend, one, that Conley wrote of his
02:40own notion the notes found beside the dead girl's body. Two, that the negro told of incidents and
02:46conversations which took place admittedly in the pencil factory an hour or more before he swears
02:51he went there. Three, that the negro admits he was drinking and broke when he went to the factory
02:57Saturday morning and is known to have spent in the afternoon about the amount of money Mary Fagan is
03:02supposed to have had in her little mesh bag when she started out of the factory. Four, that the negro
03:08admits he was in hiding or loafing near the open elevator shaft, at the foot of the steps Mary Fagan
03:13must have used as she came down to go out of the factory. Five, that at the inquest Frank said
03:19he
03:19thought he had heard voices outside his office, very soon after Mary Fagan started down the stairs,
03:25and that the voices he thought he heard which might have been voices of Mary Fagan and the negro,
03:30just as the negro attacked the girl. Six, that the negro said the body of Mary Fagan was carried
03:35down the elevator shaft, and yet two witnesses stand ready to swear and have sworn that the elevator did
03:42not run on the fatal Saturday at all. Seven, that while the negro accounts after a fashion for the
03:48girl's shoe and hat thrown onto a trash pile, he fails to account for the incriminating parasol found
03:54at the foot of the elevator shaft, where it might have been thrown with Mary Fagan's body from above.
03:59Eight, that the negro says Frank called him at twelve fifty-six, notwithstanding the fact that Frank was
04:05talking to Mr. and Mrs. White at one o'clock, and immediately thereafter left the factory, reaching home about
04:11one twenty. That therefore Frank could not have down the things Conley accuses him of having done,
04:16for sheer lack of time, if nothing else. Nine, that the negro did not flee, if guilty himself,
04:23because the police promptly accused in turn Newt Lee, Gant, Mullenix, and Frank as suspects,
04:28not once mentioning Conley, and besides, no one knew at the time these suspects were proclaimed that
04:32Conley had even been in the pencil factory Saturday morning. Ten, that Conley was caught washing his
04:38shirt, which might have been blood-stained, very soon after Mary Fagan's murder was effected,
04:43and that he said at the time he was worried over something not stated. Eleven, that the negro's
04:48statements have been inconsistent and conflicting, both those under oath and those not under oath,
04:53and that he has admitted having sworn falsely more than once. Twelve, that the negro's defense
04:59of himself is of no merit, because it is the only possible defense of himself he could frame a last
05:04and desperate resort to fix upon Frank Conley's own guilt. Thirteen, that Conley's evidence is of
05:11small, if any, value against Frank, because it was not given until suspicion seemed drifting rapidly
05:16toward Conley. Fourteen, that Frank's statements have been straightforward, consistent, and reasonable,
05:22whereas, in contrast thereto, the negro's have been inconsistent, conflicting, and unreasonable.
05:28Fifteen, if the negro's presence in the factory had been known at the time Frank was indicted,
05:32Frank likely never would have been indicted, or at least would not likely have been indicted in
05:37preference to the negro. Sixteen, that the motive in the case of Frank never has been established and
05:43will be difficult to establish, but that the motive in the case of the negro, i.e. robbery, is
05:48immediately apparent. Seventeen, that the entire factory force testifies to the good character of
05:55Frank, whereas the character of the negro, both by his own admissions and the police court records,
06:01is bad. Eighteen, that many of the horrible details of the murder, scattered broadcast when it was first
06:08effected, are not true, and that the circumstances of the crime point to the negro Conley as its
06:13perpetrator much more surely than to Frank. Now the reader must understand that which I have tried to
06:18impress upon him in every article I heretofore have written about the Fagan case, to wit, I know nothing
06:24more about the positive truth of the case than he does that is to say, my sources of information have
06:29been precisely the same sources that his have been the newspapers. I have scrutinized the files of
06:35the Georgian and the American and other Atlanta papers, and the foregoing eighteen counts against
06:40Conley. I have gathered together from perhaps fifty different issues. Framework is powerful. I have set
06:47them forth as showing the strength of the position of those, or the imaginary strength, whichever it is
06:52invoking the indictment of Conley now. They may be of tremendous significance, they may be of no
06:57material significance, but they do serve to show the framework of the powerful defense that is being
07:03constructed for Frank. I give them for what they are worth. There stands between Conley and grand jury
07:09indictment, of course, the compelling necessity of using Conley as a material witness, the material
07:14witness indeed, against Frank. To indict Conley now would weaken the state's case against Frank,
07:20unquestionably. And yet the fact remains that certain members of the grand jury have been reported as
07:25seriously inclined to that course, nevertheless. And after all, that matter, theoretically anyway, is utterly
07:32impersonal with the grand jury and arbitrarily in its hands. Before I became a newspaper man and later along
07:37police reporter, I studied law, as I mentioned before, and was admitted to the bar. I practiced four years, and
07:44while I
07:44abandoned the law long ago for the newspaper profession, I never lost my taste entirely for my first love. I
07:50went over to the
07:50State Library Saturday and looked up some few decisions bearing upon the two vital points to be raised in the
07:55Fagan case, as I view it now. And two things impressed me profoundly. State cannot attack Frank. When the defense
08:02attacks Conley, it will be backed by some weighty law affecting his credibility. And when it puts Frank's
08:08character in evidence, the state cannot put his character in evidence. It will be understood it will be backed again
08:14by
08:14some weighty opinions as to the value of character established and proved. In the 23rd Georgia Supreme
08:20Court reports, I find that Mr. Justice McDonald laid down this rule. If a witness swear willfully and
08:27knowingly false, even to a collateral fact, his testimony ought to be rejected entirely, unless it be
08:33so corroborated by circumstances or other unimpeached evidence as be irresistible. That is the law of the
08:39land, and it will be invoked, I suppose, against Conley with vigor and possible effect. The defense,
08:45no doubt, will contend that Conley has sworn falsely and proved it by written instruments,
08:49and it then will insist that Conley's entire evidence must be rejected, unless corroborated by
08:55other unimpeached testimony. Can the state corroborate Conley by such evidence? Evidently,
09:00the defense doubts it. I do not know, of course. Hearsay, irrelevant matters, street gossip,
09:05newspaper stories. Those things will not do when it comes to trying Leo Frank for his life.
09:10Conley must be corroborated. Conley, at best, an admitted accessory after the fact of the murder,
09:15must be corroborated by competent and legal evidence. And right here, I think the defense
09:20expects to give the state one of its very hardest nuts to crack. Maybe the state can crack it all
09:25right? That remains to be seen. And as to that, I venture no opinion. Again, I take it the defense
09:30expects to strike straight from the shoulder when it puts Frank's character in issue. I do not know
09:35that the defense will do this, but from the tone of some of the articles, particularly Mrs. Frank's
09:40remarkable interview, given out recently by the defense or authorized by it, I suspect that is
09:45exactly what it will do. This will be a bold stroke, too, for unless the defense puts Leo Frank's
09:51character in issue, it cannot be put in issue at all. The state is estopped of its own motion from
09:56doing that. Therefore, when the defense does it, it is pretty apt to be taken as an evidence that
10:01the defense is very confident of itself. Into the case at this point, then, will come a portion of
10:06the law of Georgia that is most picturesque and significant, a portion that is founded upon the
10:11very bedrock of decency and common sense, and that throws about all observers of the law and about all
10:17right-living men a protection as certain and as sure as it is majestic and noble, character-good
10:23evidence. In respect of character as evidence of innocence of crime, I find that Chief Justice
10:28Simmons in the 102-D Georgia said this, Evidence of good character is admitted as evidence of a
10:34positive fact, and may of itself, by the creation of a reasonable doubt, produce acquittal. And again,
10:40the same authority says, Of what avail is a good character, which a man may have been a lifetime in
10:46acquiring, if it is to benefit nothing in the hour of peril? Chief Justice Simmons was a superior
10:52court judge for some twenty years before he was elevated to the supreme bench, and a supreme
10:56court justice for a like period. He was one of the noblest men that Georgia ever produced,
11:01and one of the most profound and approved students of the law. And he made good character the very
11:06rock of Gibraltar upon which a man attacked might depend in time of peril. Once the defense puts Leo
11:12Frank's character in issue, however, the state may attack it as bitterly and as vehemently as it likes.
11:17This it may be, the state is prepared to do. Unless the state does break down Frank's character,
11:23however, once it is put in issue by his own attorneys, the state will be thereafter at a
11:27tremendous disadvantage, I think, particularly when the defense is undertaking to shoot the character
11:32of Conley to pieces from the other flank. Character cannot be broken down in a courtroom with whispered
11:37words and sinister gossip. Must attack in open. Under the impersonal rules of evidence in the law,
11:43character must be attacked in the open, it must be beaten down, if beaten down it be, with weapons
11:49the judge and the jury may see, wielded in fair play, and it must be a fight to a finish.
11:54True,
11:55if a defendant deliberately puts his own character in issue, the burden is upon him to sustain his
12:00character. But once the law puts that burden upon a defendant, it holds in leash and sure control the
12:06state in its attempts to demolish it. I have written of crimes and of criminals for fifteen years of petty
12:12sneak thieves and bank robbers, of common back-alley bullies and murders, of brutes and degenerates,
12:17of clever confidence men and clumsy bunglers. I have seen the innocent made victims of cruel
12:22circumstances, and the unquestionably guilty escape. But I am yet to see a case in which good
12:28character, firmly and frankly set up, was not a tower of strength to the accused, a sure and
12:33abiding benefit in his hour of peril, as Chief Justice Simmons says it should be. After all is said and
12:39done, character is the cornerstone upon which civilization and society most securely rests.
12:45It holds the business world together, and it differentiates the wheat from the chaff in the
12:49professions. Without it, the grand old name of gentleman is a mockery and a sham, and above all
12:55things, it best marks the woman as fitted to her natural and noblest environment. If Leo Frank puts
13:01his character in issue, it will be a challenge full and free to the state to do its worst. It
13:06well may be
13:07expected to make or mar the defense of Leo Frank charged with the murder of Mary Fagan. Decisions
13:13which may aid defense of Frank. The old police reporter, in sizing up the many possibilities of
13:19the Fagan case, has reached two conclusions as to the line of action which he believes will be
13:24followed by the defense. First, he believes the defense will undertake to destroy the value of
13:30Conley's evidence and fix upon Conley the guilt the state is trying to fix upon Frank. Second, he thinks
13:35the defense will make the character of Leo Frank an issue. The old police reporter, in pouring through
13:40the files of the Georgia Supreme Court reports, has found two decisions upon which he thinks the
13:45defense will rely. The first which might be used to break down Conley's evidence is as follows,
13:50if a witness swears willfully and knowingly false, even to a collateral fact, his testimony ought to be
13:56rejected entirely unless it be so corroborated by circumstances or other unimpeached evidence
14:01as to be irresistible. Twenty-three Georgia reports. As a circumstance tending to prove Frank's
14:07innocence, the defense, the old police reporter thinks, will produce the following. Evidence of good
14:12character is admitted as evidence of positive fact and may of itself, by the creation of a reasonable
14:17doubt, produce acquittal. One hundred two Georgia reports.
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