Monday, 15th December 1913: Attorneys Make Final Fight Over Leo Frank S Life, The Atlanta Journal

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Reuben Arnold and Solicitor

General Have Tilt Over Charge of Misstatements in Frank

Case Briefs

TWO DAYS OCCUPIED IN PLEA FOR A NEW TRIAL

Summary of Arguments

Delivered Before Supreme Court Monday by Attorneys for Defense and Prosecution

When the state supreme court adjourned its session Monday afternoon at 1 o'clock half of the time which the court had agreed to give to arguments for and against the appeal of Leo M. Frank had been consumed.

Attorney Reuben R. Arnold, for the defense, concluded his arguments at 11:40 o'clock, having spoken two hours and forty minutes.

Solicitor H. M. Dorsey, for the state, followed Mr. Arnold, and when adjournment was taken, he had spoken one hour and twenty minutes.

He will resume when court opens Tuesday morning at 9 o'clock, and will be followed by Attorney General Thomas S. Felder, for the state.

Attorney Luther Z. Rosser, for the defense, will make the closing arguments.

The hearing will most likely continue until 1 o'clock, the hour for adjournment, Tuesday afternoon.

In his argument Attorney Arnold laid particular stress upon the contention for the defense that the conviction of Frank was brought about by the influence of the mob spirit which pervaded the courtroom during Frank's trial.

He charged that the solicitor had twisted and distorted every little circumstance into an alleged proof of Frank's guilt, and had included in his arguments to the jury assertions which were not based on fact or evidence.

"This man's conviction," declared Mr. Arnold, "was brought about by innuendo and trumped-up charges."

SAYS JUDGE ROAN ERRED.

Judge Roan's refusal to declare a mistrial following the alleged demonstrations in the courtroom was attacked as error by Mr. Arnold, and his failure to sustain the motion for a new trial was also declared to have been an error.

Solicitor Dorsey at the outset of his argument charged that the brief of argument submitted by the attorneys for the defense contained numerous glaring misstatements of fact, and announced that he later would ask permission of the court to submit a supplemental brief calling attention to these misstatements.

Mr. Dorsey declared the defense was obsessed with the idea that the state had done something wrong and irregular in gathering and presenting its evidence.

He insisted that the state had proven that Frank's character was bad and that it had offered sufficient circumstantial evidence in addition to the direct evidence of the negro Jim Conley to justify Frank's conviction on the charge of having murdered Mary Phagan.

At 9 o'clock Justices Beverly D. Evans, S. C. Atkinson and H. W. Hill entered the court and mounted the bench.

Justice Evans presided.

He called the case of Frank, plaintiff in error, vs. the state.

Attorney Arnold, of counsel for Leo M. Frank, arose and asked the court for an extension of the usual time of argument, two hours, allowed each side.

Justice Evans answered that the court was to hear 200 cases during the next sixty days, and was to decide that many more; and that, therefore, it could not yield unduly to the Frank case.

Mr. Arnold argued that the lower courts had spent much time on the case, and it could not possibly be reviewed within too narrow limitations in the supreme court.

The justices conferred a moment and announced they would extend the time of argument by each side to four hours, with the request that no more time than was absolutely necessary within the limit be used.

This means that if the lawyers take all the time allowed them they will not finish before 1 o'clock Tuesday.

MR. ARNOLD OPENS.

Mr. Arnold then began his argument.

He stated that the murder of Mary Phagan had become one of the greatest mysteries that ever perplexed a community.

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ATTORNEYS MAKE FINAL FIGHT FOR FRANK'S LIFE

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He said the defense purposed showing that the verdict of guilty against Leo M. Frank was unsupported by evidence, that the negro Conley made various false statements and that his evidence was in the main unsupported and therefore should not have been allowed to figure in the trial.

Referring to the brief submitted to the supreme court, and to the voluminous brief of evidence, Mr. Arnold described the National Pencil factory, the discovery of Mary Phagan's body, the arrival of the police, the scene of the crime.

He called attention to the fact that Mary Phagan's mesh bag purse and her hair ribbon never had been found.

Mr. Arnold stated that the time element is a very important factor in the case.

Discussing it, he referred to the evidence, pointing out that George Epps, the newsboy who swore he accompanied Mary Phagan to town on the day of her death, testified that their car arrived at Marietta and Forsyth streets a 12:07 or 12:07 1-2 o'clock.

Other witnesses testified that the walk from that point to the pencil factory from that point to the pencil factory consumed 3 to 3 1-2 minutes.

Mary Phagan couldn't possibly have been in the factory therefore at 12:05, as alleged by the state, said he.

She couldn't have gotten there before 12:10 or 12:12.

FRANK'S NERVOUSNESS.

The state made much capital of the fact that Frank was nervous next morning after he had been told by the officers of the tragedy, Frank admitted he was nervous.

The fact that a tragedy had occurred in the pencil factory, and the sight of its victim at the undertaker's, were enough to make him nervous, said Mr. Arnold.

Mr. Arnold detailed Frank's movements on the Saturday preceding the discovery of the body.

Monteen Stover testified she called at the factory at 12:05, found no one in the office and waited till 12:10, when she left.

Frank himself testified Mary Phagan was there at some time between 12:12 and 12:17, and that never has been disputed successfully, said Mr. Arnold.

It is possible Frank was out of his office while Monteen Stover was there.

Frank had not attempted to deny the possibility, though he did not remember it.

Miss Hall called at 12:02.

At 12:20 to 12:22 Quinn was there.

At 12:35 Mrs. White came in.

She testified Frank appeared startled when she appeared.

The state laid great stress on that, said Mr. Arnold.

The state had magnified and twisted and distorted innocent details to make them appear suspicious, said he.

At 12:50 Frank went upstairs and told the workers there he was going to lunch and would lock the doors.

The state makes a suspicious circumstance of that, said he, yet none of the workers thought anything of it, the day being a holiday and the doors not being guarded.

"We were surprised many times during the trial by changes in the testimony of witnesses," said Mr. Arnold.

"They would come in with the detectives and swear something else than we had understood they would testify.

There were some unaccountable changes in the evidence."

Mrs. White testified, said he, that she saw a negro near the exit when she left the factory.

Wade Campbell, her brother-in-law, testified that she had told him she saw the negro there when she entered the place.

A witness saw Frank at Whitehall and Alabama streets at 1:10 or 1:11, and others near his home saw him get off the car a few minutes later.

He was back at the factory at 10 minutes to 3 o'clock.

STATE HANGS ON CONLEY.

The state's case was built entirely on Conley's evidence, said he.

Conley swore that Frank called him at 4 minutes to 1 o'clock, and that from then till 1:30 o'clock they were busy disposing of the body.

"In view of the testimony of all these other witnesses, it is shown conclusively that it was impossible for Frank to have been there at the time Conley says," argued Mr. Arnold.

He said the state made a suspicious circumstance of Frank's letter to his uncle.

"They are relying on circumstance," said Mr. Arnold.

The first, said he, is that Frank was the last person to see Mary Phagan alive.

They got that from Frank's own statement to the detectives.

"But it does not follow that committed the crime," said Mr. Arnold.

The next circumstance on which the state relied, said he, was that Frank dismissed the watchman Lee at 4 o'clock, telling him to come back at 6 o'clock.

"This is trivial, and it couldn't mean anything even from their own view, because Conley said the body had been hid at 1:30," said Mr. Arnold.

"The state argued that Frank's nervousness, when he had good cause to be nervous, indicated his guilt; and that his coolness at the trial showed him to be a hardened criminal."

"When it came to the awful ordeal of the trial, Frank stood it like the members of his race have endured persecution from time immemorial," said Mr. Arnold.

FRANK NOT EMPLOYER.

The state next made capital of the fact that Frank employed counsel.

Frank did not employ it, said Arnold.

His fiends were uneasy that something might be done to prejudice him, and so Sig Montag called Herbert Haas by telephone and told him to go to police headquarters.

"Frank had nothing to do with it," said Mr. Arnold.

Mr. Arnold said the state twisted into a suspicious circumstance the innocent fact that Mrs. Frank did not call on her husband during the week or so that he remained in police station, implying that she had some intuition of his guilt.

Frank himself explained that, said Mr. Arnold, by saying that he had asked his wife not to call there, where the surroundings and the atmosphere were not suited to her.

The state attempted to prove that Frank did not look at the face of the corpse, and made great capital of that in its argument, said Mr. Aarnold.

Yet there was not a word of truth in the assertion.

There was nothing in the evidence to show that Frank did not look at the corpse's face, said he.

The state's next claim was that Frank tried to mislead the officers about the time slip in the clock.

Frank did later find some errors in the slip when he had more leisure to examine it, he said.

Frank's good character was certified by 103 unimpeachable witnesses, said he.

The state brought in some witnesses from the factory whom it asked about Frank's character as to lasciviousness, and some of them answered it was bad, said Mr. Arnold.

"These witnesses had come through the hands of the same detectives who produced the Minola Mc Knight testimony," said Mr. Arnold.

"We didn't cross examine them. Of course, we didn't!"

Mr. Arnold took up Conley's evidence by point.

Mr. Arnold concluded his argument for Frank at 11:40 a. m. discounting and minimizing the importance to the attached to the state's contention that Frank knew Mary Phagan, and that Frank's visit to the factory dressing room was of any consequence as bearing on the case.

He asserted that the defendant was within his rights as superintendent of the factory in visiting the dressing room with the forewoman of the factory to confer with her in private.

ATTACKS STATE WITNESSES.

The testimony of Dalton and of the boy Cannon was analyzed by Arnold.

He declared that Dalton was the state's "next best witness," and that Dalton was a "gentleman with a larceny and chaingang record."

He called attention to the fact that the Cameron boy, who testified to having seen Frank talking to the Phagan girl could not tell when he was employed at the factory nor who employed him.

The attorney impressed the fact that the state, in building its chain of circumstances, had resorted to a contention that street cars some time run ahead of their schedule.

The evidence of spots found in the metal room, Arnold asserted, did not tend to prove the guilt of Frank, even though splotches were of human blood.

He emphasized, however, that an analysis of these splotches had failed to establish positively that they were made by human blood, and declared that, if anything, they tended to indicate that Conley was guilty of the crime.

He declared the testimony of Dr. H. F. Harris concerning the stomach of Mary Phagan, by which the state sought to fix the hour of the crime, was corroborative of the contention that Conley was the guilty man.

Mr. Arnold dwelt with emphasis on the court room demonstrations.

"I don't believe, your honors, that such a record of demonstrations at a trial has ever been certified by a lower court to an appellate court," said Mr. Arnold.

"The mob was all around. We were hemmed in.

The mob was howling and scowling.

The jury was afraid for their very lives.

The record shows that counsel for the defense requested that the court room be cleared at the outset of the trial, because of possible suggestive and vulgar testimony.

The court refused to do so."

"Counsel for the defense asked that the court rule out testimony of perversion, and when the court ruled against us, there was a noisy demonstration.

The jury was within twenty feet and heard the demonstration.

The court refused to grant our motion for a new trial then, as it did later."

Mr. Arnold continued to recount various other demonstrations in and out of the court room.

He described the scenes on the last day of the trial.

He declared that the result the verdict was known before the jury could be polled.

"The jury should have been polled under conditions favorable to a fair and unintimidated verdict," Arnold declared.

ASSAILS SOLICITOR.

Next, the defendant's counsel attacked what he declared was solicitor's unwarranted and illegal argument to the jury in citing facts neither in the record nor evidence.

Arnold read an opinion written and delivered by the late Supreme Court Justice Lumpkin, in which he scored a solicitor general for going outside the evidence in his argument to the jury.

Particularizing in more detail, Arnold declared that the solicitor did the defense an incalculable injury when he argued to the jury that the failure of the defense to cross-examine the character witnesses of the state was an admission of Frank's depravity.

"Your honors," said Arnold, "the brief of the solicitor general shows that this conviction was the result of innuendo and trumped-up evidence.

The solicitor actually argued and it is here in the record that the defense used general practitioners of medicine as witnesses, and that the use of these physicians justified the belief that some of them were the family doctors of members of the jury; this contention placed us in the attitude of attempting a trick on the jury.

There was no evidence to justify the assumption or assertion on the solicitor's part."

Arnold declared that the trial judge Judge Roan gave the solicitor free rein in his argument to the jury, and that he impressed upon the jury many incidents in the Durrant, Wilde, Beatty and Richeson cases.

Solicitor General Dorsey was in the midst of his argument of the Frank case when the supreme court recessed for

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ATTORNEYS MAKE FINAL FIGHT OVER LEO FRANK'S LIFE (Continued from Page 19.)

lunch at 1 o'clock Monday afternoon.

He had opened at 11:40 o'clock, and his first statement to the court was challenged by Mr. Arnold, of counsel for Frank.

"Mr. Arnold's argument," declared the solicitor, "abounds in misquotations, and he doesn't stop there, but in their brief the defense resorted to glaring misstatements of fact, and your honors must go to the trial record for the truth."

Attorney Arnold was on his feet in an instant with the declaration that the solicitor was possessed of the defense's brief for ten days and had uttered no word of protest or criticism during this time.

Ignoring the statement of Arnold, Dorsey declared that the state would ask permission of the court to file a supplemental brief at a later date, calling attention to the inaccuracies and misstatements in the brief of the defense.

Passing on, Solicitor Dorsey synopsized the life of the defendant, declaring that Frank has a highly nervous temperament and that, judged by his statement to the jury, is a man of intellect.

He asserted that his character in relation to whom had been shown to be bad, and that this trait lies at the bottom of the crime of which Frank was convicted.

FRANK WITNESSES FRIENDS.

The character witnesses for the defense, Dorsey asserted, were the business associates, personal friends and employees of the factory of which Frank was superintendent, while the character witnesses put on the stand by the prosecution were employees, and former employees of the factory.

"The factory," exclaimed Dorsey.

"The factory that is, the place where this crime was committed, where Frank's character manifested."

The solicitor painted a dark background of character for Frank, and argued that the testimony gave him a bad record for perversion.

Solicitor Dorsey contended that the state had established the fact that Mary Phagan arrived at the pencil factory between 12:03 and 12:07 o'clock.

He said it had showed by Dr. Harris that the cabbage the girl had eaten for dinner had not been in her stomach more than thirty minutes when the functions of digestion was stopped.

The testimony of Dr. Harris, Dr. Hurt and Dr. Funke, said the solicitor, had shown that the girl had suffered some kind of external violence before her death.

"Leo Frank never gave Mary Phagan's pay envelope to her when she called for it," declared Mr. Dorsey.

"He was preparing to take it out of the safe when Mrs. White called and surprised him."

Attention was called by the solicitor to the fact that at the inquest Frank had testified that he left the factory on the day of the tragedy to go to lunch about 1:10 o'clock, but that in his statement at the trial he had placed the time he left the factory before 1 o'clock.

"MISS KERN MISTAKEN."

Discussing the evidence of Miss Kern, who testified she saw Frank at the corner of Alabama and Whitehall streets between 1 and 1:10 o'clock, Mr. Dorsey declared the young lady barely knew Frank by sight and that it was entirely probable that she was in error as to the time she saw him.

"Albert Mc Knight, the negro husband of Minola Mc Knight, cook at the Selig home, where Frank lived," said the solicitor, "testified that Frank did not reach home until 1:30; that he did not eat with any of the other members of the family, and within about ten minutes after his arrival at home he had started on his way back to the factory."

"The defense charges me with having intimated Minola Mc Knight out of a confession.

This isn't true.

If I couldn't do anything to help ferret out the crime, I didn't intend to throw any obstacles in the way of the city detectives.

They are so obsessed with the idea that I have done something wrong in this case that they set down in bold print in their brief of argument the statement that Minola Mc Knight's second affidavit was taken in my office.

This is not true.

It was taken by the detectives at police headquarters.