Leo Frank advocacy enthusiast Donald E. Wilkes passed away June 7th, 2019.
Donald E. Wilkes Jr.
Professor of Law Emeritus
B.A., University of Florida, 1965
J.D., University of Florida, 1969
Criminal Procedure I
English Legal History
WE REGRET TO INFORM YOU THAT PROFESSOR OF LAW EMERITUS DONALD E. WILKES, JR. PASSED AWAY JUNE 7, 2019.
Since June 1, 2013, Donald E. Wilkes, Jr. has been a Professor of Law Emeritus at the University of Georgia School of Law. For over 40 years, from September 1, 1971 to June 1, 2012, Prof. Wilkes was a law professor at the University of Georgia School of Law.
Professor Wilkes is the author of over 325 published scholarly works, including 5 books (which have gone through a total of 30 second or subsequent editions), 2 book chapters, 14 law review articles, 3 law review book reviews, 5 encyclopedia articles, 2 bar journal articles, and more than 200 scholarly articles in professional journals, magazines and newspapers. One of Prof. Wilkes’ books is a 3-volume treatise over 4,800 pages long. Another is a 2-volume treatise nearly 1,600 pages long.
From 1969 to 1971 Professor Wilkes was a law clerk to the Hon. Ben Krentzman, United States District Judge in the Tampa Division of the United States District Court for the Middle District of Florida. From 1975 to 1976, while on a leave of absence from the law school, Professor Wilkes was a Fellow in Law and the Humanities at Harvard University.
Professor Wilkes is a nationally recognized authority in the fields of criminal procedure, capital punishment, and postconviction remedies. Professor Wilkes is one of the leading authorities in the world on the writ of habeas corpus, and in London, England has engaged in extensive research on the history of the writ at such research facilities as the British Library, the Public Record Office (now the National Archives), the University of London, the House of Lords Record Office (now the Parliamentary Archives), the Institute of Historical Research, and the Royal Historical Society. The Supreme Court of the United States twice cited one of Prof. Wilkes’ books, State Postconviction Remedies and Relief Handbook, in its opinion in Wahl v. Kholi, 562 U.S. 545 (2011). Professor Wilkes’ book was again cited by the Supreme Court of the United States in its opinion in Johnson v. Lee, 136 S.Ct. 1802 (2016).
Professor Wilkes also has spent time in Paris, France engaged in historical research on the renowned Dreyfus Affair, taught a seminar on the Dreyfus Affair, and has published 4 scholarly articles on the Affair.
Professor Wilkes is the author of the important law review articles, The New Federalism in Criminal Procedure: State Court Evasion of the Burger Court, 62 Ky. L.J. 421 (1974), First Things Last: Amendomania and State Bills of Rights, 54 Miss. L.J. 223 (1984), and Habeas Corpus Proceedings in the High Court of Parliament in the Reign of James I, 1603-1625, 54 Am. J. Leg. Hist. 200 (2014).
Professor Wilkes has been a member of the State Bar of Georgia and licensed to practice law in Georgia and in various federal courts since 1972.
Professor Wilkes was born in Daytona Beach, Florida on July 30, 1944.
More than 200 of Professor Wilkes’ publications may be accessed by clicking on the Digital Commons link on this page.
Federal Postconviction Remedies and Relief Handbook, 16th ed. (Thomson/Reuters 2018)
State Postconviction Remedies and Relief Handbook, 14th ed. (Thomson/Reuters 2018-2019) (4 vols)
From Oglethorpe to the Overthrow of the Confederacy: Habeas Corpus in Georgia, 1733-1865, 45 Ga. L. Rev. 1015 (2011)
Court of Appeals of Georgia New Georgia Encyclopedia (2010)
Writ of Habeas Corpus New Georgia Encyclopedia (2009)
Habeas Corpus Uncorpsed (2008)
Habeas Corpse: The Great Writ Hit (2006)
Writ of Habeas Corpus in 2 Legal Systems of the World: A Political, Social and Cultural Encyclopedia 645 (Herbert M. Kritzer ed.) (ABC-CLIO 2002)
The Writ of Habeas Corpus in Georgia, 12 Ga. B.J. 20 (Feb. 2007)
History of the Western Judicial Circuit, 17 Ga. B.J. 26 (Oct. 2011)
The University of Georgia School of Law
225 Herty Drive Athens, GA 30602-6012 (706) 542-5191
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Wilkes’ writings on the Leo Frank Case:
Review of Leonard Dinnerstein’s book, ‘The Leo Frank Case’: Politics, Prejudice and Perjury by Donald E. Wilkes, Jr., March 1st, 2000. www.leofrank.org/reactions/wrongly-accused-falsely-convic…
Review of Steve Oney’s book, ‘And the Dead Shall Rise, The Murder of Mary Phagan and Lynching of Leo Frank’: Wrongly Accused, Falsely Convicted, Wantonly Murdered, A Review And Analysis Of The Definitive Book On The Leo Frank Case By Donald E. Wilkes, Jr., May 5, 2004. flagpole.com/news/news-features/2004/05/05/wrongly-accuse…
Bibliography of Books and Scholarly Articles on the Leo Frank Case by Donald E. Wilkes, Jr. May 5, 2004. flagpole.com/news/news-features/2004/05/05/bibliography-o…
Steve Oney’s List of the Leo Frank Lynchers By Donald E. Wilkes, Jr., May 5, 2004. flagpole.com/news/news-features/2004/05/05/steve-oney-s-l…
Cast of Characters in the Leo Frank Case, Multipart:
Cast of Characters in the Leo Frank Case by Donald E. Wilkes, Jr., May 5, 2004. flagpole.com/news/news-features/2004/05/05/cast-of-charac…
Part I: Chronology of the Leo Frank Case by Donald E. Wilkes, Jr., May 5, 2004. flagpole.com/news/news-features/2004/05/05/chronology-of-…
Part II: Chronology of the Leo Frank Case by Donald E. Wilkes, Jr., May 5, 2004. flagpole.com/news/news-features/2004/05/05/chronology-of-…
Part III: Chronology of the Leo Frank Case by Donald E. Wilkes, Jr., May 5, 2004. flagpole.com/news/news-features/2004/05/05/chronology-of-…
Published in Flagpole Magazine, p. 9 (March 1, 2000).
Author: Donald E. Wilkes, Jr., Professor of Law, University of Georgia School of Law.
The Leo Frank Case, Politics, Prejudice and Perjury
University of Georgia Press, 1987, 1999
248 pp., paperback, $15.95
The case of Leo M. Frank, the most important Georgia criminal proceeding of the 20th century, has been the subject of dozens of books, and hundreds of articles in magazines, newspapers, and scholarly journals. The best single article on the case is still the one by Clement Eaton Moseley,
published in the Georgia Historical Quarterly in 1967. Notable among the books are Charles and Louise Samuels, Night Fell on Georgia (1956), Harry Golden, A Little Girl is Dead (1965),
Mary Phagan, The Murder of Little Mary Phagan (1987), and Robert Seitz Frey and Nancy Thompson-Frey, The Silent and the Damned (1988). The best and most authoritative book,
however, is Leonard Dinnerstein’s The Leo Frank Case (1987), reprinted by the UGA press in March 1999. Dinnerstein, formerly an Atlanta resident, and now a history professor at the University of Arizona, wrote his Ph.D. dissertation on the Frank case, and his book is an expanded version of the dissertation.
The Frank case remains, as Dinnerstein reminds us, “one of the most lurid displays of intolerance in the Progressive Era,” and “one of the causes celebres of the century.” The story of the Leo Frank case reads like a Greek tragedy. As The New Republic wrote at the time: “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.”
Around noon on Saturday, April 26, 1913, a 13-year old girl was robbed and murdered, but probably not sexually abused, at the National Pencil Factory in downtown Atlanta, where she
was employed. The crime caused tremendous public excitement and outrage, fanned by a massive amount of sensationalistic newspaper coverage. Leo Frank, the Jewish manager of the factory, was one of several persons arrested for the crime and the only one who was actually placed on trial. Born in Texas, the 29-year old Frank had moved to Atlanta from New York about five years earlier. His mob-dominated, month-long trial in Fulton County Superior Court
in July and August of 1913 was the longest criminal trial in Georgia history up to then, and resulted in his being convicted and sentenced to death. After Frank had exhausted his appeals without obtaining a reversal of his conviction, his hanging was fixed for June 22, 1915.
The day before his scheduled execution, however, Gov. John M. Slayton commuted the sentence to life imprisonment, and Frank was transferred to a state prison near Milledgeville. Less than two months later, on the night of August 16/17, 1915, a group of 25 men from Cobb county, angered by the commutation and determined to execute a death sentence anyway, drove to the prison in automobiles, broke into the prison, overpowered the guards, seized Frank, drove him to Cobb county (where the murdered girl had once lived and where she was buried), and murdered him by hanging him from a tree. None of the lynchers was ever prosecuted or even identified by law enforcement officials. Frank received a posthumous pardon in 1985.
The modern historical consensus, as exemplified in the Dinnerstein book, is that, in addition to being apparently the only Jewish person ever lynched in American history, Leo Frank was an innocent man convicted at an unfair trial. As two historians who closely studied his case wrote in 1956: “Leo Frank was the victim of one of the most shocking frame-ups ever perpetrated by American law-and-order officials.” History has thus vindicated the contemporary observer who
witnessed the monstrous injustices committed against Frank and wrote shortly after the lynching:
“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 ignominiously but undoubtedly will raise him to the position of … [a] martyr.” History has also vindicated another contemporary observer who wrote in 1915 that “for brevity, the heart of the Frank case may be summed up in three words-politics, prejudice, and perjury.”
The questionable activities of the prosecuting attorney, Hugh Dorsey, provide a good example of how Frank was victimized by politics and politicians. Dorsey was an ambitious, unscrupulous politician who used the Frank case to propel himself into two terms as Governor of Georgia.
Dorsey was quite willing to use false evidence to secure a conviction, and in other ways made plain that he would use any tactic he thought necessary, whether fair or not, to prevent Frank’s acquittal.
As Dinnerstein bluntly puts it: “In 1913, when Hugh Dorsey prosecuted Leo Frank, he convinced many people that his primary concern was with his political reputation and not with
Few criminal defendants have been as victimized by popular prejudices as Leo Frank. Prior to his trial yellow journalism and what Dinnerstein calls “newspaper hysteria” resulted in numerous headlines and stories containing false or misleading information extremely damaging to Frank.
It was falsely but widely reported and believed that Frank was a sex pervert. As a Northerner and a factory manager he was the victim of prejudice against Yankees and the corporations that employed child labor. He was also the victim of anti-Semitism. One ugly rumor widely circulated at the time, Dinnerstein tells us, was “that the tenets of the Jewish faith forbade the violation of Jewish, but not Gentile, women.”
During Frank’s trial crowds outside the courthouse
chanted, “Hang the Jew.” As for perjury, it is quite clear from the Dinnerstein book that much of the testimony from various prosecution witnesses at Frank’s trial was perjurious. The key witness against Frank was Jim Conley, the factory’s janitor, who almost certainly was the actual murderer of the young girl
Frank was charged with killing.
The material parts of Conley’s testimony, so damaging to Leo
Frank, were lies, and were known to be lies by prosecutor Dorsey and by the police. The courageous conduct of Gov. Slayton in personally investigating the case and commuting the sentence of Leo Frank constitutes one of the most admirable, heroic, and noble episodes in the history of the office of governor in this state. His 31-page commutation order, in which he expresses doubt about Frank’s guilt and his suspicions about Conley, is one of the great state papers in American gubernatorial history.
Gov. Slayton, who acquired the sobriquet “the incomparable Georgian” due to his actions in the Frank case, accompanied his order with this sublime statement:
“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.”
At the end of his book Dinnerstein concludes that “if the laws of civilization are to be respected, societies must eradicate the conditions which turn men into beasts.” That, he says, is the only sure way to avoid a continuing series of Leo Frank cases. Dinnerstein therefore appears to believe that only systematic inculcation of deep respect for human rights, especially the rights of those charged with or convicted of horrible crimes, can assure that all citizens will receive what they most deserve from government-liberty, justice, and rights, the very things Leo Frank was deprived of to Georgia’s enormous shame.
Dinnerstein’s book is must reading for all Georgians who believe that knowledge of their state’s history is necessary to avoid repeating the mistakes that have blemished this great state’s past.
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WRONGLY ACCUSED, FALSELY CONVICTED, WANTONLY MURDERED
Published in slightly different form in Flagpole Magazine, p. 7 (May 5, 2004).
Article author: Dr. Donald E. Wilkes, Jr., Professor of Law, University of Georgia School of Law.
And the Dead Shall Rise:
The Murder of Mary Phagan and the Lynching of Leo Frank
By Steve Oney
Pantheon Books, 2003
742 pp., hardcover, $35.00
I am thankful to have lived to see the appearance of Steve Oney’s And the Dead Shall Rise: The Murder of Mary Phagan and the Lynching of Leo Frank, the great definitive book on the Leo Frank case, which Oney aptly labels “one of the most complex and incendiary episodes in Georgia’s past.” The result of 17 years of research and investigation, Oney’s beautifully written masterpiece examines in exquisite detail two heinous murders -– the strangulation of young Mary Phagan and the lynching of Leo Frank, the innocent man who had been erroneously convicted of murdering her.
The unusually savage slaying of Mary Phagan, the beautiful, voluptuous daughter of a working class family who like other Southern youth in the early twentieth century was forced into child labor by harsh economic times, and who in the springtime of life was sexually violated and then choked to death with a cord by her bestial killer, continues to engender primordial fears about the ultimate crimes of murder and rape. Her murder is emblematic of the tragedy of youth and beauty suddenly, senselessly destroyed by unexpectable bloody violence.
The lynching of Leo Frank is, in the words of literary critic Warren Goldstein, “the single most famous lynching in American history.” It was the first lynching in which automobiles were utilized. It was the only instance in American history of a Jewish person being lynched, and the only lynching in this country in which anti-Semitism was a factor. It was the only lynching in which the victim was seized from a state prison (as opposed to a county jail). It was the only lynching to take place not within a few hours or days of the crime the person lynched was suspected of committing, but more than two years after that crime. It was the only lynching in which the victim was transported a large distance–-over 150 miles–-before he was killed. It was the only lynching in which government officials were so deeply involved in its plotting and carrying out–-and in the subsequent coverup of the identity of the lynchers–-that the lynching can truly be called (in the words of Oney) “a state-sponsored crime.” And unlike most lynchings, the Leo Frank lynching was committed not by persons acting excitedly in a heat of passion, but by persons acting with cold calculated premeditation, persons who were driven not by alcohol but by a primitive instinct for grisly vengeance.
Mary Phagan, who had lived the first seven years of her life in Marietta in Cobb County, was murdered in the National Pencil Company Building in Atlanta on April 26, 1913. The manager of the factory, Leo Frank, was indicted for the murder, given an appallingly unfair trial, found guilty, and sentenced to death. After Frank’s appeals in the courts had been unsuccessful, Georgia’s Gov. John M. Slaton, alarmed by grave doubts about Leo Frank’s guilt, commuted Frank’s sentence to life imprisonment on June 21, 1915. Thereafter, on Aug. 16, 1915 a group of men from Cobb County drove in a caravan of automobiles to the prison where Frank was confined, forced their way into the prison in the late evening, laid violent hands on Frank, took him on a six or seven hour drive back to Cobb County, and about 7 a.m. on Aug. 17 murdered him in cold blood by hanging him from an oak tree two miles from Marietta. No one was ever criminally charged in connection with Frank’s abduction and murder. In 1986 Frank was posthumously pardoned.
The Leo Frank case, which encompasses the Mary Phagan murder, as well the criminal proceedings against and illegal execution of Leo Frank, has never been recounted more thoroughly and vividly than in Steve Oney’s book, and I do not intend in this book review to retell the story of the case.
However, for those who before or after reading Oney’s book seek a better understanding of the Leo Frank case, I have prepared and inserted at the end of this book review the following informational material:
(1) A Chronology of the Leo Frank Case;
(2) A List of the Principal Characters Involved in the Leo Frank Case, together with brief biographies of these persons;
(3) A List of the Leo Frank Lynchers Identified by Oney, together with biographical information on the lynchers; and
(4) A Bibliography of Readings on the Leo Frank Case.
The remainder of this book review will be devoted to answering this all-important question: Who murdered Mary Phagan?
At Leo Frank’s trial prosecutors maintained that Frank killed Phagan in a room on the second floor of the pencil factory, the same floor on which Frank’s business office was located. Their principal witness, the man without whose testimony Frank would never have been convicted, was Jim Conley, a black man who worked in the building as a janitor. Conley testified that he was sitting on a box on the first floor near the stairs on the day of the murder; that he saw Mary Phagan enter the building and walk up the stairs to the second floor where Frank’s office was located; that later Frank called him up to the second floor, admitted killing Phagan, and asked him to help with the disposal of the corpse; that he and Frank carried the body to the elevator and took it down to the basement where they left it on the ground; that he and Frank then went up to Frank’s office where Frank dictated four notes which Conley wrote on paper procured from Frank’s office; and that two of these handwritten notes–known to history as the murder notes, or the death notes, because they purport to have been written by Phagan while she was being assaulted–were the notes later found by police near the body in the basement.
The defense, on the other hand, contended that Conley’s testimony was false and Frank was wholly guiltless of the murder; that Conley was the murderer; that Conley had attacked Phagan after she had left Frank’s office and come down the steps to the first floor; that Conley then tossed Phagan down a nearby trapdoor hole into the basement; and that Conley had written the murder notes in the basement on his own (presumably in an effort to point the finger of guilt at another black man). Taking the stand in his own defense, Frank vehemently denied murdering Phagan and branded Conley’s testimony a vast mass of lies.
If the prosecution’s theory of the case was correct, Leo Frank was the murderer; if the defense’s theory was correct, Jim Conley was the murderer. One of the theories must be right and the other must be wrong; there are no other possible theories or suspects. Although it has been suggested that perhaps some unknown person secretly entered the factory, committed the murder, and stealthily departed, there are many reasons why this is impossible. For example, if neither Frank nor Conley murdered Phagan, then how did Conley come to write the murder notes? (Conley acknowledged writing the notes, the notes are in his handwriting, and it is indisputable that he wrote them.) So was it Frank or was it Conley who killed Phagan?
Amazingly, despite its immensity and comprehensiveness, Oney’s book (as literary critic Theodore Rosengarten reminds us) does not “come flat out and say who killed Mary [Phagan].” Although the book does assert that the weight of the evidence “strongly suggests Frank’s innocence,” it also claims that “the argument [over whether Frank or Conley is the guilty party]” will “never move beyond that of Conley’s word versus Frank’s.” On the other hand, in a recent press interview Oney stated that “I’m pretty certain that Frank was innocent,” and “I’m 95 percent certain Conley did it.” And in a short magazine article published in March 2004 Oney “declared [his] belief in Frank’s innocence.”
Based on the trial evidence and on evidence discovered after the trial, I propose now to dispel any lingering doubts about who killed Mary Phagan. Beyond a reasonable doubt, beyond any legitimate doubt whatsoever, Leo Frank was innocent of killing Mary Phagan, and Jim Conley was her murderer.
I begin with the evidence introduced at Leo Frank’s trial. For, as historian C. Vann Woodward wrote, the trial evidence was “overwhelmingly more incriminating [of Conley] than any produced against Frank.”
In the first place, there was not the slightest doubt that Conley had written the murder notes, and yet the notes were more highly incriminating of Conley than of anyone else, in that they purported to blame the crime on a black male who did not look like Conley. (The notes attributed the crime to someone described as “a long tall negro black,” a “long sleam [sic] tall negro,” and a “long tall black negro.” This fit the description of the building’s night watchman; Conley himself was short, stocky, and light-colored.) It is utterly nonsensical to think that Leo Frank told Conley, a black man, to write out notes designed to incriminate another black man. Who but Conley would have conceived the notion of describing the murderer as a black male who did not look like Conley? In this respect the contents of the notes irresistibly suggest that Conley, not Frank, was responsible for the contents of the notes–and therefore was the killer (as well as a perjurer). As Berry Benson, a code deciphering expert who scientifically studied the notes many years ago, astutely observed: “If Frank did not dictate the notes, then Conley was the murderer.”
Second, the timeline of the story Conley testified to was physically impossible. Mary Phagan arrived at the building no earlier than 12:11 p.m. and it was undeniable that Frank left the building shortly after 1 p.m. Yet Conley claimed that during this interval of less than one hour the following happened: Frank took Phagan from his office to another room on the same floor at least 150 feet away and strangled her; Frank walked nearly 150 feet back to the stairway and summoned Conley to come up from the first floor; Conley walked up the stairs to the second floor and had a conversation with Frank; Conley walked to the room where the victim was lying, saw she was dead, returned to Frank, and noticed that the time was 12:56 p.m.; Conley went back to where the victim was and tried to pick up the body (which weighed 107 pounds) but found it was too heavy and summoned Frank to come help him; Conley and Frank carried the body to the elevator near Frank’s office, took the body to the basement on the elevator, and left it there in the basement (at a spot 136 feet from the elevator shaft); Frank and Conley went up to Frank’s office where the two conversed; while the two were in the office two women, Corinthia Hall and Emma Clark, approached Frank’s office, causing Frank to hide Conley in a wardrobe where Conley remained for some time; then, Hall and Clark having left the office, Conley came out of the wardrobe and Frank dictated four notes to him, including the two notes found near the body which contained a total of 128 words written by Conley.
Third, Conley’s testimony materially conflicted with the testimony of numerous reliable witnesses. Here are a few good examples. Conley testified that three women employees–Monteen Stover, Corinthia Hall, and Emma Clark–arrived at the building after Mary Phagan, even though it is obvious from their testimony that they arrived and left the building before Phagan. Conley’s testimony conflicted with that of building superintendent Lemmie Quinn who saw Frank in Frank’s office at 12:20 p.m. Conley’s testimony conflicted with that of Mrs. Arthur White who entered the building at 12:30 p.m. and saw Frank near his office as she was going up the stairs, who saw Frank at 1 p.m. when he came up to the fourth floor and spoke to her, and who shortly afterward saw Frank at his desk in his office as she left.
Fourth, one of the murder notes contradicted Conley’s claim that the notes had been written in Frank’s office instead of (as the defense claimed) the basement, for it began, “mam that negro hire down here did this …” If the note had been written in Frank’s office, it would have said “down there” rather than “down here.” The note also contradicted Conley’s claim that Mary Phagan had been taken to the basement in the elevator (and confirmed the defense position that Phagan had reached the basement by being thrown through the first floor trapdoor hole), because it said: “he push me down that hold [sic]…”
Fifth, the other murder note used the term “night witch,” a reference to a legendary hobgoblin then well known in Southern black culture but entirely unknown to Northern whites such as Frank (who Conley said had dictated the notes).
I now turn to the newly discovered evidence which was not available to the jury but was presented by Leo Frank’s attorneys to the trial court in posttrial motions or to Gov. Slaton in connection with Frank’s request for commutation of his sentence. This evidence falls into four categories: (1) the Annie Maude Carter affidavit and correspondence, (2) the testimony of Henry F. Becker, (3) the testimony of Dr. Henry F. Harris, and (4) what Oney calls “the shit in the shaft” evidence.
Annie Maude Carter was a girlfriend of Jim Conley’s. After Frank’s trial Carter prepared an affidavit for Frank’s lawyers in which she revealed that Conley had confessed to her that he had murdered Mary Phagan, telling Carter that on the day of the murder he was sitting on a box in the factory when Phagan came down the staircase; that he told Phagan someone had called her; that Phagan turned back and he then struck her with his fist, knocking her down; that he dropped her through the trapdoor hole; that he put her down there to make people believe the building’s night watchman did it; that afterward he found a piece of blank paper, tore it in two, picked up a pencil, and wrote the death notes and put them near the corpse; that he kept the money he found in Phagan’s purse; and that he then pulled the staple out of the back door and fled the building. There are no valid reasons for doubting the truth of Carter’s affidavit, which confirms the view of the facts that Frank’s defense took at the trial. It is also another indication that Conley lied under oath.
The Annie Maude Carter correspondence consisted of a batch of letters Conley wrote to Carter in late 1913 and early 1914. Conley admitted writing the letters, which are in his handwriting, and there is no question that he wrote them. In their frequent use of monosyllabic words and compound adjectives, and in several other respects, the letters are quite similar in their composition to the murder notes. The letters prove that Conley, not Leo Frank, composed the murder notes, and that Conley lied when he claimed that Frank dictated them. And who would compose the death notes except the murderer?
Henry F. Becker was a former employee at the National Pencil Company Building. He stated under oath that when he left his job in 1912, he had personally packed up all of the factory’s outdated carbon copy order sheets and sent them down to the basement. Since one of the murder notes had been written on an outdated carbon copy order sheet, Becker’s evidence tends to prove that the murder notes had been written in the basement (as the defense maintained) and not in Leo Frank’s office (as the prosecution claimed and as Jim Conley swore).
Dr. Henry F. Harris was the physician who performed Mary Phagan’s autopsy. In a post trial affidavit he certified that before the trial he microscopically examined head hair found in the second floor room where the prosecution claimed Mary Phagan had been murdered by Leo Frank, and discovered that it did not come from Phagan. During the trial the prosecution repeatedly suggested to the jury that the hair came from Mary Phagan, and that it ended up in that room due to injuries inflicted on Phagan in that room. Dr. Harris’ affidavit on the hair evidence supports the defense’s contention that Mary Phagan had been killed in the basement by Jim Conley. (At the trial the fact that Dr. Harris had made this discovery that the hair was not Phagan’s was concealed by prosecutors from the court, the jury, and the defense.)
Finally, there is the evidence relating to the human feces found in the building’s elevator shaft pit not long after the Phagan murder. It was undisputed at the trial that police investigating the murder found formed human feces in the pit and that when they rode the elevator to the basement the bottom of the elevator car smashed the excrement, producing a foul odor. It was also undisputed at the trial that Jim Conley had been the person who, not long before the murder, had defecated into the shaft; while testifying Conley freely admitted being the one who had deposited the excrementitious mound which police saw there in its natural condition.
After the trial it was discovered (and Gov. Slaton himself verified this by visiting the building and using the elevator several times) that whenever the elevator car traveled to the basement it came into contact with the basement floor before coming to a stop. Now Conley had testified that he and Leo Frank had taken Phagan’s corpse to the basement in the elevator. If that had been true, however, the fecal mound previously deposited in the shaft would have been mashed when the elevator car containing Phagan’s body reached the basement and would not still have been in formed condition at the time police used the elevator. Contrary to Conley’s testimony, therefore, the elevator had not been used to transport the body to the cellar. In addition to showing that in still another respect Conley was a perjurer, this evidence also supported the defense’s position that Conley had attacked Phagan on the first floor and then flung her body down the nearby trapdoor hole into the basement.
I now turn to the newly discovered evidence which did not surface until after Leo Frank’s murder. This includes:
(1) the bite evidence discovered by Pierre Van Paassen in 1922, and
(2) the 1982 affidavit of Alonzo Mann.
Van Paassen was a Dutch journalist who in the 1920’s, while working as a reporter for The Atlanta Constitution, conducted his own investigation of the Leo Frank case by going over the evidence (including documents and photographs) on file at the courthouse. He discovered that Mary Phagan “had been bitten on the left shoulder and neck before being strangled,” and that “photos of the teeth marks on her body did not correspond with Leo Frank’s set of teeth of which several photos were included.”
Alonzo Mann worked as Leo Frank’s office boy and was 13 years old at the time of murder of Mary Phagan. In 1982, now 83 years old and in poor health, he prepared an affidavit for a newspaper in which he explained why he was now breaking his silence after all these years and announcing to the world that he knew for sure that Leo Frank was innocent and Jim Conley was guilty. Shortly after noon on the day of the murder, Mann had entered the building through the main entrance on the first floor and saw a surprised Conley near the trapdoor hole carrying the limp body of Mary Phagan on his shoulder. After Conley threatened him to kill him, Mann ran outside and did not tell anyone what he had seen except for his parents (who insisted that he remain silent).
After making the affidavit Mann passed a lie detector test, and no has seriously suggested that Mann’s allegations are not the gospel truth.
Curiously, Oney downplays the tremendous significance of Mann’s affidavit. In the book, Oney says that Mann’s assertions “added little of probative value,” and further says: “True, Mann’s story, by placing Conley in the factory lobby, did give the lie to [Conley’s] contention that he’d used the elevator to transport the remains, but far from being a revelation, this assertion merely corroborated what the so-called shit in the shaft had indicated a lifetime before.” And in a recent press interview, Oney said: “Mann’s story was incredibly dramatic, and I believe it. However, both the defense and the prosecution were in accord that Conley had carried Mary Phagan’s body.”
Oney’s obtuseness as to the importance of Mann’s affidavit is a stupefying lapse on his part. Although it is true that both the prosecution and defense agreed that Conley carried Phagan’s body, they most certainly did not agree on where this had happened. Prosecutors contended that Conley and Frank carried the body across the second floor to the elevator, descended in the elevator with the body directly to the basement, and then carried the body out of the elevator into the basement, and Conley testified to this effect. That Conley had at any time carried the body, or been with the body, on the first floor was contrary to the entire theory of the prosecution’s case and to the testimony of its star witness. It was the defense which contended that Conley had attacked Phagan on the first floor, taken her body to the trapdoor hole, and then dumped it into the basement. Mann’s affidavit therefore does not under any reasonable construction simply confirm something on which prosecutors and defense lawyers were in agreement. On a vital point on which the prosecution and the defense were in disagreement–whether at any time Conley carried Phagan’s body while he was on the first floor–the affidavit flatly contradicts the prosecution’s case and confirms the defense’s contentions. It is also still another indication that Conley lied under oath.
There is another important respect in which Mann’s affidavit contradicts the prosecutors and their star witness. According to Jim Conley’s testimony, from the time he allegedly tried to pick up the dead body lying on the ground on the second floor until the time the body was left in the basement, he and Frank were together. Yet when Mann saw him on the first floor carrying the body Conley was alone and Frank was nowhere in sight. The affidavit therefore rebuts Conley’s claim that Frank helped carry the body, and confirms Frank’s statement at the trial that Conley’s story was a lie.
Thus, despite Oney’s unaccountable inability to comprehend it, Mann’s revelations provide a colossal refutation of the prosecution’s claim that Conley was both truthful and innocent and that Frank was guilty. They show that Conley lied when he said that Mary Phagan was taken to the basement in the elevator. They show that Conley lied when he said that he and Frank together carried Phagan’s body. They show that the defense was correct in maintaining that Conley was with the dead or dying girl on the first floor, and that the prosecution was wrong in denying this. They also confirm the defense contention that Mary Phagan was probably tossed into the basement via the trapdoor hole in the first floor.
More importantly, Mann’s revelations prove that Frank was innocent and Conley was guilty of Mary Phagan’s murder. Conley, as I have noted, testified that he and Frank conveyed Phagan’s body in the elevator directly from the second floor to the basement. He said nothing about taking the body out of the elevator on the first floor, and it would have been unnecessary, foolish, and dangerous for him to have done anything other than descend nonstop to the basement. Proof that Conley was carrying Phagan in his arms on the first floor does more than demolish his claim that he and Frank transported the body to the basement in the elevator and it does more than prove that Conley was a perjurer. Because it is incompatible with any theory of Conley’s innocence, it is proof that Conley was the murderer.
For what other explanation can there be for the indescribably incriminating conduct of Conley which Mann saw with his own eyes on the first floor–especially when that conduct is combined with Conley’s later conduct in writing the murder notes blaming another black man for the murder? Under all the circumstances, the only plausible interpretation of the fact that Jim Conley was observed with an apparently unconscious Mary Phagan draped over his shoulder on the first floor of the factory is that Jim Conley was the murderer of Mary Phagan.
The unfair trial and wrongful conviction of the innocent Leo Frank, the myriad violations of his rights in the criminal proceedings against him, the perjuries used to shatter the presumption of his innocence, the abominable bursts of anti-Semitism directed at him by Georgians, his illegal execution, the failure to bring his dastardly murderers to justice–these have, in the prescient words of William Randolph Hearst, “involve[d] … Georgia in everlasting and unavailing sorrow and regret.”
The rabbi was right when on the eightieth anniversary of Leo Frank’s pitiless murder he put up at the site of the lynching an inscribed memorial plaque which says:
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Next: Chronology of the Leo Frank Case
Next: Cast of Characters in the Leo Frank Case
Next: Steve Oney’s List of the Leo Frank Lynchers
Next: Bibliography of Books and Scholarly Articles on the Leo Frank Case
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CHRONOLOGY OF THE LEO FRANK CASE
Apr. 26, 1913 Today, a Saturday, is Confederate Memorial Day, an important holiday in the early twentieth century South. Sometime in the very early afternoon, soon after being paid in cash the $1.20 in wages due her, Mary Phagan, 13 years old and an employee of the National Pencil Company, is murdered inside the National Pencil Company Building, a four-story, city-block-long stone structure with a cavernous, crypt-like basement, located at 37 South Forsyth St. in downtown Atlanta.
Today is not a workday for Phagan, who enters the building by the main entrance shortly after noon for the sole purpose of picking up her payroll envelope, which is handed to her by Leo M. Frank, the factory superintendent of the National Pencil Company, in his office on the second floor. Five feet six inches tall, weighing 120 pounds, Frank, 29 years old, is a small man of delicate physique who wears thick spectacles.
About eleven or twelve minutes after noon, Mary Phagan walks into the building through the front door on the first floor and heads for the staircase leading to the second floor. Only a few feet away on the right is a scuttle hole, which can be closed off by a trapdoor, and leads via a ladder down to the tomblike basement. As Mary Phagan walks toward the stairs she is unaware that she is being watched by a man who has been drinking heavily and is concealed from view by boxes stacked in front of him. For unknown to Mary Phagan, Jim Conley, 29 years old, a short, strong, muscular light-colored black man who has been working as a janitor at the National Pencil Company Building since 1911, is sitting on a box in a dark place under the stairwell. The foot of the stairs is within a few feet of Jim Conley’s hiding place. From his vantage point in the gloom, Conley can observe persons walking to or from the stairs but is invisible to them. Conley has been drinking beer, wine, and whisky for several hours. While sitting there in the darkness this morning he has been carefully observing the persons who enter the building and ascend the stairs, and he will later testify in court as to the clothes and footwear the females were wearing. He silently watches Mary Phagan as she approaches the stairs and begins walking up the steps.
Leo Frank and Jim Conley are the last two persons known to have seen Mary Phagan alive.
Shortly after 1 p.m. Leo Frank leaves the building, boards a street car around 1:10 p.m., and arrives at his home for lunch around 1:20 p.m. He returns to the building around 3 p.m.
Apr. 27, 1913 Around 3 a.m. Mary Phagan’s dead body is discovered in the basement by the National Pencil Company Building’s night watchman, a black man named Newt Lee who immediately telephones the police station.
Police rush to the building by automobile. They find the corpse lying face down at the rear of the 200-foot long, earthen-floor basement, a filthy catacomb littered with trash, coal dust, sawdust, and ashes, and lighted by a gas jet. The body is 136 feet from the elevator shaft.
Phagan has been strangled with a seven-foot length of cord tied in a slipknot still tightly wrapped around her neck. (Quantities of cord of this character are found throughout the building.) Her tongue is swollen and protruding. She has soot on her face, dirt in her eyes, and cinders in her mouth and nostrils. She has a black eye, there are wounds on her scalp and below the knee and scratches on the elbow, and her clothing has been torn. There is fresh blood in her underclothing, and she appears to have been raped vaginally or anally. She has also been robbed: her purse containing the $1.20 is missing.
The exit route of the murderer is unmistakable. Someone has pulled out an iron staple sealing shut a wooden sliding door which at the rear of the basement opens into an alley. Nearby, leaning against the wall of the basement, is the piece of metal pipe used to lever open the staple.
Police find two murder notes, handwritten in pencil, near the corpse. Riddled with misspellings, monosyllabic words, and grammatical oddities, the notes, which together contain 128 words, purport to have been written by the murder victim as she was being attacked (!), and blame the attack on someone described variously as “a long tall negro black,” a “long sleam tall negro,” and “that long tall black negro.” (There is a photograph of both notes in Steve Oney’s book.)
One murder note, purportedly addressed to the victim’s mother (!), was written on a lined carbon copy of a National Pencil Company blank order sheet, with “Atlanta Ga. 190_” across the top. It reads: “mam that negro hire down here did this i went to make water and he push me down that hold a long tall negro black that hoo it was long sleam tall negro i wright while play with me.” This note was probably the one written first. The other murder note, written on a white piece of lined paper, states: “He said he wood love me and land doun play like night witch did it but that long tall black negro did buy hisslef.”
Suspicious police accuse Lee (who is tall, slim, and dark-complexioned) of the murder and arrest him on the spot.
Later in the day, during a search of the basement, police discover a mound of formed human excrement (which a policeman says “looked like someone had dumped naturally”) in the elevator shaft pit. Shortly afterwards, when the elevator car is lowered down to the basement, it stops when it comes into contact with the ground, mashing the naturally formed feces and filling the air with a fetid odor.
Apr. 28, 1913 The first newspaper articles about Mary Phagan’s murder are published in the three Atlanta dailies: The Atlanta Constitution, The Atlanta Journal, and The Atlanta Georgian (recently been purchased by William Randolph Hearst). The early 1900’s is the high point of titillating partisan journalism in America, and not surprisingly today’s articles are sensationalized accounts of the murder tragedy. The Georgian devotes five pages to the murder and even features a ghoulish photograph, taken by a newspaper photographer, of Mary Phagan on a slab at the undertaker’s. At least eight and perhaps as many as 20 Georgian extra editions, with red headlines, are published today, according to Oney’s book.
Between today and the end of August these three newspapers, in a revolting manifestation of yellow journalism, boost their circulation figures and compete with each other by acting as if the murder of Mary Phagan was the world’s biggest news story. There are screaming headlines, lurid stories, heartrending accounts of people and events, lugubrious interviews with friends and relatives of the murder victim, wild allegations and false rumors repeated as gospel, barbarous cries for vengeance, grim offers of reward, and excited promises of draconian justice. The attention given to the Phagan murder is staggering. From the end of April through August the Georgian, for example, devotes the equivalent of 100 pages the size of The New York Times to the case. The Georgian triples its sales during this time. Once Leo Frank is arrested, the newspapers publish numerous items falsely alleging or implying not only that his guilt is certain, but also that he is of depraved and lecherous character and a sex pervert. The fact that Frank is Jewish is not ignored by the press, and this fans the flames of the anti-Semitic rumors running rampant through Atlanta, such as the ugly canard that (in the words of history professor Leonard Dinnerstein) “the tenets of the Jewish faith forbade the violation of Jewish, but not Gentile, women.” (“It is ridiculous to protest that there has been prejudice against the Jew in the Frank case,” a contemporary will write in 1915, “the whole atmosphere of the case reeks with it.”) The trial of Leo Frank in July and August will, therefore, occur during a period of what historian Dinnerstein accurately describes as “newspaper hysteria.”
Apr. 29, 1913 Around 11:30 a.m. two Atlanta police detectives arrest Leo Frank in his office for the murder of Mary Phagan. Frank will never have another day of freedom. As he is being led into the police station, Frank tells reporters: “I am not guilty. Such an atrocious crime has never entered my mind.” Today’s The Atlanta Georgian announces the arrest under the headline “Police Have the Strangler.” It also reports: “Frank and Negro [Newt Lee] Are Given the Third Degree.”
Also on this day Mary Phagan’s funeral is held, and she is buried in Marietta, the city where she lived for most of the first eight years of her life.
May 1, 1913 Jim Conley is arrested after the National Pencil Company Building’s day watchman spots Conley washing red stains out of a blue work shirt on the second floor of the building. Police fail to have the shirt tested for the presence of blood. Conley will remain in police custody until after Leo Frank’s trial.
May 16, 1913 In his first written statement to police, Jim Conley says that on the day of Mary Phagan’s murder he got up from bed after 9 a.m., that he left his home at 10:30 a.m., visited a number of saloons, purchased a half pint of whisky on the street, visited another saloon, won 90 cents throwing dice, bought some beer, visited another saloon where he bought beer and wine, arrived home at 2:30 p.m., went out and bought beer about an hour later, and then returned home, where he remained that night.
May 24, 1913 On this day Jim Conley, after being subjected to third degree interrogation tactics for a week, verbally admits to police that he can read and write and that he wrote the murder notes. (During the previous weeks he had repeatedly told police he was illiterate. Police have discovered Conley’s literacy due to a remark made by Leo Frank. “I know he can write,” Frank told a private detective. “I have received many notes from him asking me to loan him money.”) Conley then makes his second written statement to police, in which he claims that he wrote the notes on the day prior to Mary Phagan’s murder under the following circumstances: on the afternoon of the Friday the day before the murder, Frank had summoned him to his office; Frank had then inquired whether Conley could write, to which Conley answered, “Yes;” Frank had then told Conley to write the notes; and Frank had then composed and dictated the contents of the notes, which Conley wrote out. Conley also says that after writing the notes that Friday Frank “told me he had some wealthy people in Brooklyn and then … said, ‘Why should I hang?’”
A few hours later, unaware that Conley has confessed to being the author of the murder notes, the Fulton County grand jury indicts Leo Frank for the murder of Mary Phagan. A dozen or more men have been arrested as suspects in connection with the murder of Phagan, but Frank is the only person ever indicted for the crime. If the grand jury had known about Jim Conley’s confession to writing the murder notes, it is certain that Conley also would have been indicted for the murder.
May 28, 1913 Jim Conley, who has now been in police custody for four weeks, makes his third written statement to police, this one notarized. In today’s statement Conley acknowledges being in error in his previous statement when he said that he wrote the murder notes on the day before the murder; he now says he wrote them on the day of the murder. Conley claims that he was summoned up to Frank’s office to write the notes “about four minutes to one o’clock.” Today’s statement is similar to the statement Conley will give on the following day, except that today’s statement is less detailed and says nothing about the murder of Mary Phagan or the disposal of her body or about any alleged incriminating admissions made by Frank. In today’s statement Conley repeats what he said in his May 16 statement about his visits on the morning of April 26 to numerous saloons and about his drinking beer, wine, and whisky that morning.
Later, at Leo Frank’s trial, a police detective explains how and why and he and other police interrogators induced Conley in his May 28 statement to alter his story as to the day on which the murder notes were written. The detective testifies:
“We tried to impress him with the fact that Frank not would not have written those notes on Friday, that that was not a reasonable story. That showed premeditation and that would not do. We pointed out to him why the first statement would not fit. We told him we wanted another statement. He declined to make another statement. He said he had told the truth.
“On May 28th Chief Lanford and I grilled him for five or six hours again, endeavoring to make clear several points which were farfetched in his statement. We pointed out to him that his statement would not do and would not fit, and he then made the statement of May 28th, after he had been told that the previous statement showed deliberation and could not be accepted.”
May 29, 1913 After four hours of what The Atlanta Georgian the next day will call “merciless sweating” (and Oney characterizes as “ruthless grilling”), Jim Conley makes his fourth written statement to police, this one also notarized. Much of this statement is substantially similar to testimony Conley later gives on direct examination at the trial of Leo Frank. In today’s statement Conley claims for the first time that Frank led him to a dead girl on the second floor and admitted killing her, and that he helped Frank carry the corpse to the elevator and transport it to the basement. He also now claims that once the dead girl was deposited in the basement he returned to the first floor on the elevator, that Frank returned to the first floor by climbing a ladder that led to the trapdoor hole on the first floor, that both men then rode on the elevator from the first floor to the second floor, and that it was after they arrived in Frank’s office that Frank composed and dictated the murder notes. Conley also says that after he wrote the notes Frank gave him a cigarette package inside which Conley later discovered $2.50, prompting him to exclaim, “Good luck has done struck me.”
June 4, 1913 Lucille Frank, Leo Frank’s wife, releases a statement accusing Hugh Dorsey of “torturing” witnesses to give false testimony incriminating her husband. She says: “[T]he action of the [district attorney] in arresting and imprisoning our family cook because she would not voluntarily make a false statement against my innocent husband, brings a limit to patience.” Tomorrow, Hugh Dorsey will issue a statement denying any wrongdoing, and on the following day Lucille Frank will repeat her charges.
June 28, 1913 John M. Slaton is inaugurated as Governor of Georgia, succeeding Joseph M. Brown.
July 21, 1913 With difficulty prosecutor Hugh Dorsey persuades a newly convened Fulton County grand jury not to indict Jim Conley for the murder of Mary Phagan. Unlike the grand jury that indicted Leo Frank, this grand jury knows that Conley has confessed to writing the murder notes.
July 27, 1913 The Atlanta Constitution publishes a full page article heaping praise on the police who had “solved” the murder of Mary Phagan.
July 28, 1913 Leo Frank’s jury trial, which The Atlanta Constitution predicts will be “The Greatest Legal Battle in the History of Dixie,” begins on this Monday in the Superior Court of Fulton County, Judge Leonard S. Roan presiding. It will be longer than any previous criminal trial in Georgia history, with court sessions held on 25 days over a period of four weeks. Seated near Frank during the trial, in addition to his counsel, are his wife Lucille, 25 years old, and his elderly mother, Rachel Frank.
During the morning session of this first day of the trial, the all male, all white jury is selected and sworn, and both sides make opening arguments. After lunch, the prosecution begins its presentation of the case. The first witness to testify is Mary Phagan’s mother, dressed in black mourning clothes and wearing a heavy veil. While on the stand she weeps and sobs.
Leo Frank’s trial is taking place in the old Chamber of Commerce Building-City Hall (since demolished) on the northeast corner of Pryor and Hunter Streets. (A new courthouse for the Fulton County Superior Court is under construction nearby.) The cramped courtroom in which the trial takes place formerly was used for city council meetings and features a dozen electric chandeliers hanging from the tin ceiling. During the trial the room is oppressively hot and humid, with the thermometer in the nineties.
The case for the prosecution is tried by the district attorney, Hugh M. Dorsey, and his assistants. From the beginning of their involvement in the case last May, these prosecutors have time after time displayed a disturbing proclivity to see Frank convicted at all costs and by any means. For example, they repeatedly arrange for police to arrest persons who have made statements or given affidavits helpful to Frank, and the persons so arrested usually are not released until they retract their previous declarations. During the trial and in the posttrial proceedings, Hugh Dorsey and his fellow prosecutors present the case for the prosecution with craftiness and overzealousness; and by the use of what Oney calls “uncanny dexterity” they extract every possible advantage flowing from the widespread community enmity toward Leo Frank. The prosecutors remorselessly press two overarching assertions–that their principal witness, Jim Conley, is a paragon of veracity and that Leo Frank is an inhuman, perverted child murderer.
The chief defense lawyers, Luther Rosser and Reuben Arnold, are talented, highly experienced practitioners, but they inexplicably commit blunder after blunder before, during, and after the trial, doing overall a wretched job of defending their client. Prior to the trial, for example, despite overwhelming community hostility to their client, they do not move for a change of venue. During the trial they botch the cross-examination of Jim Conley, underestimating Conley’s intelligence and wiliness. After the trial they fail to raise in a procedurally correct manner some of Frank’s strongest claims of violations of his constitutional rights, and as a result the courts deem these, the best of Frank’s constitutional claims, to have been waived due to the procedural defaults of his attorneys. Louis Wiley, a business manager of The New York Times who carefully follows the Leo Frank trial as it unfolds, will write with great perspicacity in 1914: “I am strongly inclined to believe that [Frank] was not adequately defended. If he had been it seems to me the dreadful situation now before us might have been prevented.” The consensus of modern opinion is that, in the words of DeWitt H. Roberts, a scholar who carefully studied the trial, “the defense of Leo Frank was one of the most ill-conducted in the history of Georgia jurisprudence.”
Throughout the trial Judge Roan struggles to maintain order and decorum and to suppress outbursts among the 250 spectators in the courtroom. The courtroom is packed with unruly spectators hostile to Frank. They frequently cheer and applaud the conduct of prosecutor Hugh Dorsey, as well as court rulings in favor of the prosecution, whereas they laugh at arguments or motions made by defense counsel. Because of the blistering summer heat the windows of the main floor courtroom are kept open. And yet just outside those windows, in the adjoining streets and alleys, large crowds hostile to Frank are milling about, vociferously expressing their barbarous feelings. The noises emanating from these crowds can be clearly heard inside the courtroom, and sometimes, when the prosecution scores a point, the courtroom spectators and the crowds outside applaud simultaneously.
A member of the lower house of the Georgia General Assembly who visits the courthouse during Leo Frank’s trial will later recall: “There was a thirst for the blood of Mary Phagan’s murderer. So intense was this feeling that the very atmosphere in and about the courthouse was charged with the sulphurous fumes of anger. I was in the courthouse several times during the trial, and the spirit, the feeling, the thought of the crowd affected me. Without reason I found myself prejudiced against Frank. Prejudiced, not from facts and testimony, but by popular belief and hostile feeling manifested by the crowd.”
The prosecution’s theory of the case is that not long after she entered his second floor office Leo Frank, acting alone, killed Mary Phagan in the metal room (where Phagan usually worked), which was located on the same floor over 150 feet from Frank’s office; that Frank killed Phagan because she had just refused his unwanted sexual advances; that Frank sought help from Jim Conley to dispose of the body; that Frank and Conley carried the dead girl from the metal room and put her in the elevator and took her down to the basement; and that thereafter both men went to Frank’s office where Conley wrote the murder notes at the dictation of Frank.
The case for the defense is that, unknown to Leo Frank, Jim Conley attacked Mary Phagan after she had left Frank’s office and had descended the staircase to the first floor; that Conley threw her body down the nearby trapdoor hole into the basement and then wrote the murder notes there in the basement in an attempt to cast the blame for the murder on Newt Lee; and that Frank had nothing to do with the crime.
July 29, 1913 Atlanta police detective John Black, who had gone to the basement where Mary Phagan was found to investigate her murder, testifies: “There was some excrement in the elevator shaft. When we went down on the elevator, the elevator mashed it. You could smell it all around.”
July 30, 1913 During cross-examination by defense attorneys, Boots Rogers, a civilian who had accompanied police searching the basement, testifies: “In the elevator shaft there was some excrement. When we went down on the elevator, the elevator mashed it. You could smell it all around. It looked like the ordinary healthy man’s excrement…. [T]hat was before the elevator came down. When the elevator came down afterwards it smashed it and then we smelled it.”
July 31, 1913 Monteen Stover, 14 years old and an employee at the National Pencil Company Building, testifies that on the day of the Mary Phagan murder she went to Leo Frank’s office on the second floor of the building to pick up her wages, arriving at 12:05 p.m. to find that Frank was not in his office. She waited for five minutes and when she left the office at 12:10 p.m. Frank still had not showed up.
Wherever Frank might have been during the brief interval between 12:05 and 12:10 when he was absent from his office (assuming the accuracy of Stover’s testimony), it is certain that–contrary to the contentions of the prosecutors–he was not with Mary Phagan. Stover left Frank’s office at 12:10 p.m. The street car bringing Phagan to downtown Atlanta arrived at its destination, the intersection of Marietta and Forsyth streets, no earlier than precisely 12:07½ p.m (according to the testimony of the motormen operating the street car). At the trial civil engineers testified that the intersection was 1,016 feet, or a four and a half minute walk, from the building. Because of the holiday crowds, it might have taken longer than normal for Mary Phagan to walk to the building. Thus, Mary Phagan did not arrive at the building until at least 12:11 p.m., which was after Stover had left it. “[I]t hardly seems possible under the evidence,” Gov. John M. Slaton will later write in his 1915 order commuting Frank’s sentence, “that Mary Phagan was at [the] time [of Stover’s visit to Frank’s office] being murdered.”
Further reading at: