Thursday, 14th August 1913 Defense Slips Load by Putting up Character of Leo Frank as Issue

Atlanta Georgian
August 14th, 1913

By JAMES B. NEVIN.

The defense in the Frank case did the expected thing when it boldly and unequivocally put Frank's character in issue.

It indicated its confidence in the justice of the defendant's cause in doing that, and it met thus a crisis that it hardly could have successfully overcome otherwise, if it so happen that it does overcome it eventually.

Having taken the initiative in the matter of thrashing out Frank's character, the State will now be forced to make out an unmistakable case of bad character against Frank, or it is likely that the State's injection of the sinister charge against him, in addition to the charge of murder, may operate as a boomerang to the State's great hurt finally.

It is not to be wondered at that the defendant's mother, tried and racked in spirit and pride as she surely must have been, should have let her feelings overcome her for an instant during the course of Wednesday afternoon's hearing. I do not suppose it is even remotely possible for any person not a mother to understand all she has gone through.

Her vehement protest against the vile things being said and hinted about her boy—true or untrue, though such things always are untrue in mother love, I take it—serves to illustrate, however, how very vital to the defense now is the establishing of Frank's good character.

I doubt that anything thus far said to the jury has so profoundly impressed it as the unspeakable thing Conley said of the defendant. The jury is only human, and it can no more dodge impressions than other people can.

Impression Must Be Erased.

The defense is up against the herculean task of removing all of that impression from the mind of the jury—the twelve minds of the jury, indeed—for it will not do to leave even a fraction of Conley's story undemolished!

Manifestly, therefore, the defense could not, if it would get away altogether from the matter of Frank's character. It found itself necessarily forced to the other extreme of the situation set up by the State.

The State, on the other hand, by reason of the defense's challenging attitude in the matter of forcing the issue of Frank's character, must now corroborate the frightful story of Conley, or I think it may suffer before the jury irreparable injury.

Curiously enough, the burden of proof in the Frank case seemed to have been shifted a week ago—that is, whereas the burden is legally imposed upon the State, it being the theory of the law that a defendant goes into court with the presumption of innocence in his favor, it appeared, after Conley had made his awful charge, that the burden then was shifted onto the defense to prove Frank's innocence, rather than that the State should prove his guilt.

In putting Frank's character in issue, however, I now think the defense has shifted back the burden, in large measure, anyway, to where the law contemplates it shall rest.

The State must complete its proof of Frank's depravity, or the State will not have made out such a case is likely will stand to the last analysis.

Defense Plans Its Climax.

As the State moved in the beginning of the Frank trial, steadily and consistently to the negro sweeper, Jim Conley, as the climax of its case, so to-day the defense is moving, every bit as steadily and as persistently, to the defendant, Leo Frank, as the climax of its case.

The State's case progressed ever up to Conley—the defense's case is progressing ever up to Frank.

It is Conley vs. Frank no less than it is the State vs. Frank.

No intelligent and discriminating observer, abreast with the status of the trial doubts that, or has doubted it for days.

Either Leo Frank's life will answer for Mary Phagan's, or Jim Conley's will!

The capstone of the defense undoubtedly will be the defendant's statement. He will make it just before the defense rests its pleading.

Already, this anticipated dramatic event has cast its shadow before. The public is looking forward to Frank's personal statement with no less keen interest than it looked forward, perhaps, to the terrible story of Conley.

Frank will be permitted, under the law, to make a statement to the jury, but without being permitted to swear to its truthfulness. The jury will be instructed that it may accept that statement, if it so elects, in preference to all the sworn testimony in the case; or it may accept it in part and reject it in part; or it may reject it altogether.

The jury alone and finally is made the sole judge of the defendant's credibility on the stand.

Tells What He Pleases.

The defendant can not be impeached; he can not be cross-examined; he can not be prompted by his attorneys. He simply states what he pleases, in the exact way he pleases, and in such detail or lack of detail as he pleases. It is strictly a matter between the defendant and the jury.

Leo Frank is one of the few defendants in murder cases coming under my observation, who absolutely refrained from discussing his case, in any phase of it, in advance of his trial.

Only at the Coroner's inquest, where he as obliged to talk, had he opened his lips to speak concerning the charge brought against him. In adopting this course, he unquestionably was well within his legal rights, and well within the bounds of common sense, too, no doubt, but the fact remains that the course he pursued is the unusual one.

I said in a former article that Frank apparently is a very patient man—and such men fight mighty hard when once aroused—and the more I reflect upon that observation, the more I am inclined to emphasize it.

He has waited four months to tell his story—but when he does it, it will be related in the proper presence, the court and the jury.

It is unlikely that the public wishes to hear anything quite so much as exactly what Frank himself has to say of the charges lodged against him.

It has heard what everybody else both intimately and distantly concerned, has had to say. It has heard Conley's story from Conley's own lips—but thus far Frank has been as silent as the grave of the dead girl itself!

It is impossible to forecast the effect, of Frank's statement upon the jury. It may have as powerful an effect in clearing him as Conley's horrible statement surely must have had by way of then condemning him.

Juries Have Accepted It.

I have seen cases in which the defendant's statement alone evidently served to clear him. I have known juries to accept it as the truth, over and above all the sworn testimony—just as the jury has the unquestioned right to do.

On the other hand, I have seen the defendant's statement fall flat and stale. I have seen it have no more effect upon the jury than rain has upon a duck's back.

It all depends upon the defendant's manner and bearing on the stand, the seeming sincerity of his recital, its plausibility and probability, the character of the man making it, his intelligence and apparent directness of purpose, the necessity of the statement as bearing alone and entirely upon weak points in either his own or the State's case, and many other things.

The defendant's statement presumably dovetails, of course, into the case as lawyers therefore have made out—and yet I have known the defense to introduce the defendant the first thing and proceed thereafter to the building of a case around his statement.

As this case is so thoroughly a fight between Conley and Frank—that is, between Conley's evidence and Frank's evidence—it will be intensely interesting to watch and see how eventually the jury views the relative value of both.

Much Rests on Defendant.

Conley's story, as amazing and as shocking as it is in parts, nevertheless has been accepted by many as the truth. Presumably those people who already have made up their minds still are willing to be convinced — as violent as the presumption may be in some cases — if Frank can convince them.

Upon Frank's statement, therefore, it is entirely possible the entire case may turn finally.

To discredit Frank's statement, to be sure, will be his heavy self-interest and the fact that it is not upon oath and not subject to cross-examination.

To discredit Conley's story, however, is his also heavy self-interest and the fact that, while his story was delivered on oath, his character admittedly is very bad and his numerous previous sworn statements admittedly false in many important details.

The situation thus set up is about as pretty as it could be, from an abstract legal standpoint. If it were a surgical problem we were considering, I should predict that the operation will be beautiful and brilliant in any event—but as for the patient—well, I really could not say!

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