Thursday, 16th April 1914: Says Frank Verdict Violates U.s. Law Surprise Is Sprung By New Attorneys In Court Thursday, The Atlanta Journal

Search for:

Reading Time: 7 minutes [1069 words]

Tye, Peeples & Jordan have asked Judge Hill to set aside the verdict against Leo M. Frank because he was not present when it was read. Judge Hill has scheduled a hearing for Wednesday to address this motion, as well as a motion for a new trial filed by Arnold & Rosser. The motion to set aside the verdict was filed by attorneys Tye, Peeples, Alexander, and others, who are new to the case. At the same time, Frank's regular counsel filed an extraordinary motion for a new trial based on alleged new evidence. Judge Hill issued a rule nisi on both motions, requiring the solicitor general to show cause next Wednesday why they should not be granted.

The motion to set aside the verdict came as a surprise. It asserts that Judge L. S. Roan, the trial judge, requested that Frank not be present at the rendering of the verdict due to the possibility of violence in the event of an acquittal. This request also applied to Frank's leading counsels, Reuben R. Arnold and Luther Z. Rosser. The motion claims that Frank was unaware of the agreement to waive his presence and would have had no right to waive it even if he had known. The motion is significant because it contains four constitutional points that could allow the case to be appealed to the U.S. Supreme Court if Judge Hill denies both motions and the state supreme court upholds his decision. The motion alleges that rendering the verdict without the accused present violated both the U.S. Constitution and state laws. A previous decision by Judge Hill himself, Lyons vs. the State, will be cited in the argument, as it set aside a verdict because an attorney waived the presence of himself and his client over the phone.

The issuance of the rule nisi automatically stays Frank's execution, which had been set for Friday, April 17. If Frank loses both motions, he will have to be called into court again and resentenced. Solicitor General Dorsey, informed of the motion while in Valdosta, declined to comment further but stated that Frank's attorneys had promised not to take advantage of his absence, despite Dorsey's protest to the judge.

Attorneys Luther Z. Rosser and Reuben R. Arnold issued a statement clarifying that they did not appear as counsel in the motion to set aside the verdict, which was filed by Tye, Peeples, and others. They filed the extraordinary motion for a new trial based on newly discovered evidence, which is a separate proceeding. During the trial, the judge expressed concern for Frank's safety due to public sentiment, and on the last day, he requested that Frank and his counsel not be present when the verdict was rendered. Rosser and Arnold agreed to this request, but did not inform Frank or their associate counsel, Herbert J. Haas, due to the tense situation and the multitude of tasks they had to handle. They feel they should not participate in the motion to set aside the verdict due to their involvement in the agreement with the judge, but they acknowledge that the decision is Frank's to make.

The extraordinary motion for a new trial is based on new evidence, including Dr. H. F. Harris's opinion that hair found on a lathe in the National Pencil Factory did not resemble that of the murdered girl, Mary Phagan, and Mary Rich's statement that she saw Jim Conley, the Negro accuser of Frank, emerge from the factory's basement back door at 2:20 p.m. on the day of the murder. R. R. Arnold presented an order appointing the court reporter to take evidence from Dr. Harris, Mary Rich, and E. A. Stephens, the assistant solicitor, as they had declined to give affidavits. Judge Hill emphasized that arguments on both motions must proceed next Wednesday unless there is good cause for delay.

Henry Peeples confirmed that his firm had recently entered the case and was employed by the defense, but he would not say whether they would take up other angles of the case. The introduction of a federal constitutional question is significant, as it could lead to an appeal to the U.S. Supreme Court. After court adjourned, John Black, a city detective, testified that he had taken hair found on the lathe to Dr. Harris several days after the crime. Mary Rich, the Negress, was not in court, and the defense learned that she had made another affidavit contradicting some points in her affidavit for the defense and had given it to the state.

The full text of the motion to set aside the verdict states that Frank was not present when the verdict was received and the jury was discharged, despite his right to be present. He did not waive this right, nor did he authorize anyone to do so on his behalf. The motion argues that his presence was a legal right and a requirement of law that could not be waived, even by Frank himself, given the severity of the charge. It details the conversation between Judge Roan and Frank's counsel, Rosser and Arnold, in which the judge expressed concern for Frank's safety if he were present at the verdict and requested that he not be present. The motion asserts that this agreement was made without Frank's knowledge or consent and was invalid due to the circumstances under which it was made.

The motion further argues that the reception of the verdict in Frank's absence violated his constitutional rights under both the Georgia and U.S. Constitutions, including the right to due process and a fair trial. It cites specific constitutional provisions and argues that the judge's denial of a new trial, despite his doubts about Frank's guilt, denied Frank due process and equal protection under the law. The motion also alleges that the trial was not fair and impartial due to the boisterous crowds outside the courtroom, the applause within the courtroom, and the judge's consultations with law enforcement, which may have intimidated the jury. The motion concludes by requesting that the verdict be set aside and the execution of the sentence be stayed until the court rules on the motion.

The motion was filed by Leonard Haas, Tye, Peeples & Jordan, H. A. Alexander, and H. J. Haas, attorneys for Leo M. Frank.