You Are There: Atlanta Georgian, July 20th, 1913 – Little Mary Phagan

Counsel of Frank Says Dorsey Has Sought to Hide Facts

The Atlanta Georgian
Sunday, July 20, 1913

Attorneys Rosser and Arnold, in a Statement to the Press, Make Bitter Attack on Solicitor for His Conduct of Phagan Case.

Call Attention to Secrecy Maintained by Prosecution, and Declare Action of State's Attorney Has Inflamed Public Opinion.

Luther Z. Rosser and Reuben R. Arnold, attorneys for Leo M. Frank, who will be tried July 29 on the charge of killing Mary Phagan, joined Saturday in a bitter attack upon the policy of Solicitor Hugh M. Dorsey, whose procedure in the case, they said, had inflamed public opinion and had placed the Solicitor far below the dignity of his office.

In a formal statement, they charged that Dorsey had ignored his constitutional and legal functions and had sought to usurp those of the Grand Jury by his attempt to block the indictment of Jim Conley by that body.

They described his action as unprecedented and dangerous in the extreme, and represented Dorsey and Conley as partners in "a harmonious concert."

The document, which is one of the few public statements issued by the defense, is bristling with criticism of the Solicitor's conduct throughout the investigation of the murder mystery, and charges that Dorsey has maintained his belief in Frank's guilt apparently for no other purpose than to convict Frank.

Call Attention to Secrecy.

Attention is called to the secrecy with which evidence is being gathered by the prosecution "in manufacturing its case against Frank," as though an innocent man—as the law contemplates Frank until he is proved guilty—should not be given the advantage of a knowledge of every shred of evidence which may be found for or against him, so that it may be presented, if favorable, and that it may be met and disproved if false.

Disclaiming any intention of criticising the previous Grand Jury, Attorneys Rosser and Arnold cite the circumstance of Conley's first confession, into which he was forced by the discovery that he could write after he steadfastly had denied he could, and asserted that the Solicitor had been asked to bring this incident to the attention of the Grand Jury, but that he, if report were true, actually directed that it be not done.

Another indication of the Solicitor's alleged domination over the Grand Jury was contained, said the attorneys for the defense, in his reported action in insisting that the jurors pledge themselves not to act in any way on the suggested Conley indictment during his absence on a vacation.

Statement of Defense.

The statement, in full, follows:

Counsel for Leo M. Frank have refrained from making a statement for the papers except under strong provocation. Clearly counsel on both sides should refrain from any comment of or criticism on any action of the Grand Jury to be taken at its meeting next Monday, which might tend to hamper or limit the Grand Jury in their action upon the Conley case.

The Grand Jury is an independent body; it is under the control of no one.

A Solicitor General is the adviser of that body as to legal principles merely, but he has no right to exercise any sort of control in determining who shall or shall not be indicted.

To permit a Solicitor General to use the position intrusted to him by the people to decide for himself who shall and who shall not be indicted is a danger too great to be contemplated.

Reply to Solicitor.

With this preliminary statement we reluctantly make a reply to Solicitor Dorsey's interview in this morning's paper.

It is rather remarkable that the Solicitor General and a person admitting complicity in a grave crime should get together in such harmonious concert of action as these two interviews show.

Mr. Dorsey admits that the indictment of Conley will have only a "mild but undesirable effect on the state's case against Leo M. Frank."

Ought the solicitor general for one moment to be influenced in his advice to the grand jury by any consideration of the effect upon anybody's case?

It is not our understanding that the grand jury is organized to aid the solicitor general in his management of cases in court; their function is a higher one. They investigate every case of probable guilt and return an indictment. It could just as well be argued that the indictment of Frank might have had a mild but undesirable effect on Conley's case in case Conley had been first indicted.

The position of the solicitor general in this case has from the beginning been most remarkable. It has been heretofore understood that the solicitor was to try cases sent to him by the grand jury, but in this case, detective-like, the solicitor is seeking to determine who shall be indicted.

Dorsey Sharply Criticized.

Forgetting his legal and constitutional functions, he is undertaking to control the action of the grand jury.

The citizens of this county elected Mr. Dorsey as solicitor general, but Mr. Dorsey has mistaken the purpose of his election. Evidently he believes that he was elected to be also the grand jury.

The Solicitor General does his duty when he tries to the best of his ability cases sent to him by the grand jury. The solicitor falls far below the dignity of his office when he inflames public opinion thereby inducing a conviction, innocent or guilty.

The solicitor has closed his eyes to these plain truths and has rushed into print day by day proclaiming the guilt of Frank and the innocence of this negro apparently for no purpose but to convict Frank, innocent or guilty, for the gratification of his professional pride.

So far has the state's counsel forgotten the function of a prosecutor, which is only to ascertain the truth and convict the guilty, that Mr. Dorsey's detective assistant Chief Lanford in an interview in this morning's paper, uses the following language as to the Pinkerton Detective Scott and Lanford's refusal to allow him to see Conley.

Score State's Secrecy.

"We did not want to embarrass Scott by requesting him to keep silent and did not risk the probability of letting new developments reach Frank's attorneys, therefore we were forced to prevent him from seeing the negro."

It seems, therefore, a matter for great endeavor on the part of the state as the solicitor and his associate detective sees it to keep whatever facts they rely upon to convict Frank from the defendant and his attorneys and the public.

If the facts in the solicitor's possession were the truth, why so much fear as to letting them out? Is it possible that the effort is to ambush the defendant by the proof of circumstances on the trial which he has no opportunity to meet or explain? Is it possible that the state's object is to keep the defendant in the dark as to the state's evidence and to so conduct its case that he will have no opportunity to know the facts relied upon to convict him and no opportunity to clearly meet them and disprove them if they be false?

Solicitor's Action Attacked.

The solicitor has undertaken in this case to hold certain witnesses in custody. He undertook to do this in the case of the negro Conley, but so fearful was he that the negro might dare to tell all he knew that he went through the farce of requesting the superior court to no longer incarcerate Conley and to discharge him and immediately upon obtaining this order of discharge he went through the greater farce of having him loosed upon the streets and then immediately and illegally returning him to the city station house where he now is carefully watched, counselled, and interviewed by the solicitor, his assistant Mr. Hooper, and his detective assistants.

We have no criticism of the former grand jury, but some things happened before it as reported that tend at least to provoke serious inquiry.

When Leo M. Frank's case was before the grand jury and in the midst of it Conley made his first confession, forced thereto by the discovery that he could write. It was suggested to the solicitor that this confession be brought to the grand jury's attention. That would have been a fair thing to do. It was not done and rumor has it that Mr. Dorsey directed that it be not done.

One other thing is almost incredible. According to the public prints, when the solicitor wanted a vacation, he was so afraid that the grand jury might act in his absence that he sought to extract a promise from these sworn servants of the State not to indict in his absence.

Question Precedent.

When before was it ever suggested to a Grand Jury that they must await the termination of a pleasure trip before they should indict in any case where indictment was necessary?

Little need be said in reply to lawyer W.M. Smith's interview given in support of the solicitor's petition.

It is remarkable that the solicitor has to rely for support upon an argument made by Conley's counsel. It is, however, appropriate that he should bolster up the solicitor as he depends mightily upon the solicitor to protect his negro, Conley. Conley's counsel realizes who is Conley's friend and rushes in print to his rescue.

We are publishing this interview neither in an effort to have Conley indicted nor in an effort to have him not indicted. That is a matter solely for the grand jury. We are not making any appeal to them or to anybody else as to the effect Conley's indictment would have on the Frank case.

So far as we are concerned we feel that the failure of the Solicitor General to secure an indictment against a confessed accessory to the crime of murder would make far more capital in favor of Frank upon his trial than if he were indicted. We think any jury, and we think any community, would resent the rank favoritism shown this confessed criminal.

LUTHER Z. ROSSER,
R. R. ARNOLD.