Sunday, 6th July 1913 Phagan Case Centers on Conley; Negro Lone Hope of Both Sides

The Atlanta Georgian

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.

(3) That the negro admits he was drinking and "broke" when he went to the factory Saturday morning and is known to have spent in the afternoon about the amount of money Mary Phagan is supposed to have had in her little mesh bag when she started out of the factory.

(4) That the negro admits he was in hiding or loafing near the open elevator shaft, at the foot of the steps Mary Phagan must have used as she came down to go out of the factory.

(5) That at the inquest Frank said he thought he had heard voices outside his office, very soon after Mary Phagan started down the stairs, and that the voices he thought he heard which might have been voices of Mary Phagan and the negro, just as the negro attacked the girl.

(6) That the negro said the body of Mary Phagan was carried down the elevator shaft, and yet two witnesses stand ready to swear, and have sworn, that the elevator did not run on the fatal Saturday at all.

(7) That, while the negro accounts after a fashion for the girl's shoe and hat thrown onto a trash pile, he fails to account for the incriminating parasol found at the foot of the elevator shaft, where it might have been thrown with Mary Phagan's body from above.

(8) That the negro says Frank called him at 12:56, notwithstanding the fact that Frank was talking to Mr. and Mrs. White at 1 o'clock, and immediately thereafter left the factory, reaching home about 1:20. That, therefore, Frank could not have down the things Conley accuses him of having done, for sheer lack of time, if nothing else.

(9) That the negro did not flee, if guilty himself, because the police promptly accused in turn Newt Lee, Gantt, Mullinix [sic] and Frank as suspects, not once mentioning Conley; and, besides, no one knew at the time these suspects were proclaimed that Conley had even been in the pencil factory Saturday morning.

(10) That Conley was caught washing his shirt, which might have been blood-stained, very soon after Mary Phagan's murder was effected, and that he said at the time he was worried over something not stated.

(11) That the negro's statements have been inconsistent and conflicting, both those under oath and those not under oath, and that he has admitted having sworn falsely more than once.

(12) That the negro's defense of himself is of no merit, because it is the only possible defense of himself he could frame—a last and desperate resort to fix upon Frank Conley's own guilt.

(13) That Conley's evidence is of small if any value against Frank, because it was not given until suspicion seemed drifting rapidly toward Conley.

(14) That Frank's statements have been straightforward, consistent and reasonable, whereas, in contrast thereto, the negro's have been inconsistent, conflicting and unreasonable.

(15) If the negro's presence in the factory had been known at the time Frank was indicted, Frank likely never would have been indicted; or, at least, would not likely have been indicted in preference to the negro.

(16) That the motive in the case of Frank never has been established and will be difficult to establish, but that the motive in the case of the negro—i. e., robbery—is immediately apparent.

(17) That the entire factory force testifies to the good character of Frank, whereas the character of the negro, both by his own admissions and the police court records, is bad.

(18) That many of the horrible details of the murder, scattered broadcast when it was first effected, are not true, and that the circumstances of the crime point to the negro Conley as its perpetrator, much more surely than to Frank.

Now, the reader must understand that which I have tried to impress upon him in every article I heretofore have written about the Phagan case, to wit: I know nothing more about the POSITIVE TRUTH of the case than he does—that is to say, my sources of information have been precisely the same sources that his have been—the newspapers.

I have scrutinized the files of The Georgian and The American and other Atlanta papers, and the foregoing eighteen counts against Conley I have gathered together from perhaps fifty different issues.

Framework is Powerful.

I have set them forth as showing the strength of the position of those—or the imaginary strength, whichever it is—invoking the indictment of Conley NOW.

They may be of tremendous significance—they may be of no material significance. But they DO serve to show the framework of the powerful defense that is being constructed for Frank.

I give them for what they are worth.

There stands between Conley and Grand Jury indictment, of course, the compelling necessity of using Conley as a material witness—THE material witness, indeed!—against Frank.

To indict Conley NOW would weaken the State's case against Frank, unquestionably.

And yet the fact remains that certain members of the Grand Jury have been reported as seriously inclined to that course, nevertheless.

And, after all, that matter (theoretically, anyway) is utterly impersonal with the Grand Jury and arbitrarily in its hands.

Before I became a newspaper man and later along police reporter, I studied law, as I mentioned before, and was admitted to the bar, I practiced four years, and while I abandoned the law long ago for the newspaper profession, I never lost my taste entirely for my first love.

I went over to the State Library Saturday and looked up some few decisions bearing upon the two vital points to be raised in the Phagan case, as I view it now, and two things impressed me profoundly.

State Can Not Attack Frank.

When the defense attacks Conley it will be backed by some weighty law affecting his credibility, and when it puts Frank's character in evidence—the State CAN NOT put his character in evidence, it will be understood—it will be backed again by some weighty opinions as to the value of character, established and proved.

In the Twenty-third Georgia Supreme Court Reports I find that Mr. Justice McDonald laid down this rule:

If a witness swear willfully and knowingly false, even to a collateral fact, his testimony ought to be rejected entirely, unless it be so corroborated by circumstances, or other unimpeached evidence, as be irresistible!

That is the law of the land, and it will be invoked, I suppose, against Conley, with vigor and possible effect.

The defense, no doubt, will contend that Conley has sworn falsely—and proved it by written instruments—and it then will insist that Conley's entire evidence must be rejected unless corroborated by other unimpeached testimony.

Can the State corroborate Conley by such evidence?

Evidently the defense doubts it.

I do not know, of course.

Hearsay, irrelevant matter, street gossip, newspaper stories—those things will not do when it comes to trying Leo Frank for his life.

Conley Must Be Corroborated.

Conley, at best an admitted accessory after the fact of the murder, must be corroborated by COMPETENT and LEGAL evidence.

And right here, I think, the defense expects to give the State one of its very hardest nuts to crack.

Maybe the State can crack it, all right!

That remains to be seen, and as to that I venture no opinion.

Again, I take it the defense expects to strike straight from the shoulder when it puts Frank's character in issue.

I do not KNOW that the defense will do this, but from the tone of some of the articles, particularly Mrs. Frank's remarkable interview, given out recently by the defense, or authorized by it, I SUSPECT that is exactly what it will do.

This will be a bold stroke, too, for unless the DEFENSE puts Leo Frank's character in issue, IT CAN NOT BE PUT IN ISSUE AT ALL.

The State is estopped, of its own motion, from doing that.

Therefore, when the defense DOES it, it is pretty apt to be taken as an evidence that the defense is very confident of itself.

Into the case at this point, then, will come a portion of the law of Georgia that is most picturesque and significant—a portion that is founded upon the very bedrock of decency and common sense, and that throws about all observers of the law and about all right-living men a protection as certain and as sure as it is majestic and noble.

Character Good Evidence.

In respect of CHARACTER as evidence of innocence of crime, I find that Chief Justice Simmons, in the 102d Georgia, said this:

"Evidence of good character is admitted as evidence of a positive fact, and may, of itself, by the creation of a reasonable doubt, produce acquittal!"

And, again, the same authority says:

"Of what avail is a good character, which a man may have been a lifetime in acquiring, if it is to benefit nothing in the hour of peril?"

Chief Justice Simmons was a Superior Court judge for some twenty years before he was elevated to the Supreme bench, and a Supreme Court justice for a like period.

He was one of the noblest men that Georgia ever produced, and one of the most profound and approved students of the law.

And he made good character the very Rock of Gibraltar upon which a man attacked might depend in time of peril!

Once the defense puts Leo Frank's character in issue, however, the State may attack it as bitterly and as vehemently as it likes.

This, it may be, the State is prepared to do.

Unless the State does break down Frank's character, however, once it is put in issue by his own attorneys, the State will be thereafter at a tremendous disadvantage, I think, particularly when the defense is undertaking to shoot the character of Conley to pieces from the other flank!

Character can not be broken down in a courtroom with whispered words and sinister gossip.

Must Attack in Open.

Under the impersonal rules of evidence and the law, character must be attacked in the open—it must be beaten down, if beaten down it be, with weapons the judge and the jury may see, wielded in fair play, and it must be a fight to a finish.

True, if a defendant deliberately puts his own character in issue, the burden is upon him to sustain his character; but once the law puts that burden upon a defendant, it holds in leash and sure control the State in its attempts to demolish it.

I have written of crimes and of criminals for fifteen years—of petty sneak thieves and bank robbers, of common back-alley bullies and murders, of brutes and degenerates, of clever confidence men and clumsy bunglers.

I have seen the innocent made victims of cruel circumstances and the unquestionably guilty escape, but I am yet to see a case in which good character, firmly and frankly set up, was not a tower of strength to the accused—a sure and abiding "benefit in his hour of peril," as Chief Justice Simmons says it should be!

After all is said and done, character is the corner stone upon which civilization and society most securely rests.

It holds the business world together, and it differentiates the wheat from the chaff in the professions.

Without it, the grand old name of gentleman is a mockery and a sham—and, above all things, it best marks the woman as fitted to her natural and noblest environment!

If Leo Frank puts his character in issue, it will be a challenge full and free to the State to do its worst—it well may be expected to make or mar the defense of Leo Frank, charged with the murder of Mary Phagan.

DECISIONS WHICH MAY AID DEFENSE OF FRANK

The old police reporter, in sizing up the many possibilities of the Phagan case, has reached two conclusions as to the line of action which he believes will be followed by the defense:

FIRST, he believes the defense will undertake to destroy the value of Conley's evidence, and fix upon Conley the guilt the State is trying to fix upon Frank.

SECOND, he thinks the defense will make the character of Leo Frank an issue.

The old police reporter, in poring through the files of the Georgia Supreme Court Reports, has found two decisions upon which he thinks the defense will rely.

The first which might be used to break down Conley's evidence is as follows:

If a witness swears willfully and knowingly false, even to a collateral fact, his testimony ought to be rejected entirely, unless it be so corroborated by circumstances, or other unimpeached evidence, as to be irresistible. —23 GEORGIA REPORTS.

As a circumstance tending to prove Frank's innocence, the defense, the old police reporter thinks, will produce the following:

Evidence of good character is admitted as evidence of positive fact, and may, of itself, by the creation of a reasonable doubt, produce acquittal!—102 GEORGIA REPORTS.

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