Tuesday, 16th December 1913: Franks Fate Rests With Higher Court Arguments Closed, The Atlanta Journal

Reading Time: 19 minutes [3150 words]

Rosser Ends Supreme Court Battle by Declaring Frank Was Not Convicted of Murder, but of Other Crimes.

DORSEY SAYS DEFENSE USED TRICKER IN BRIEF

Celebrated Case Now in Hands of Six Supreme Justices, Who Will Hand Down Decision in About Six Weeks

The greater portion of the hour and twenty minutes consumed by Luther Z. Rosser in his argument before the supreme court Tuesday for a reversal of Judge L. S. Roan's action overruling Leo M. Frank's motion for a new trial was devoted to what he termed the admissibility of illegal and irrelevant testimony at the trial, and the alleged unfair and illegal argument of Solicitor Hugh M. Dorsey to the jury.

"The jury wrote a verdict of murder," declared Mr. Rosser, "but it really found Frank guilty of perversion and immorality."

Again, he asserted that it is impossible for a legal verdict to be based upon illegal testimony.

Mr. Rosser characterized the testimony of the negro Jim Conley relating to perversion on Frank's part as illegal, and the testimony of Dalton relating to the alleged presence of women in Frank's office as irrelevant and illegal, and the testimony of the several young women who swore that Frank's character for lasciviousness was bad as immaterial and illegal.

He declared that Solicitor Dorsey brought in this testimony and stressed it in his arguments with the one purpose of inflaming the minds of the jurymen against the defendant.

"Frank's character was driven into this case," said Mr. Rosser.

"It could not be kept out.

With the kind of evidence which Judge Roan permitted to go into the record and before the jury, Frank had about as much chance as crippled grasshoppers in a pen of doves."

"The method of the solicitor and detectives in extracting testimony from witnesses was described as highhanded and horribly injurious to the defendant."

Mr. Rosser made a vigorous and vehement speech, in the course of which he predicted that the supreme court would reverse Judge Roan.

Solicitor Dorsey resumed his argument when court convened at 9 o'clock and concluded at 11:10 o'clock.

He was followed by Attorney General Thomas S. Felder, who spoke for forty minutes.

Then Mr. Rosser entered into the closing argument for the defense.

When court adjourned at 1 p. m. the arguments were ended and the case was in the hands of the six supreme court justices.

It will probably be five or six weeks before they hand down their decision.

DORSEY CHARGES TRICKERY.

When the hearing on the plea for a new trial for Leo Frank began again before the supreme court Tuesday morning, Solicitor Dorsey renewed his attack on the brief of the defense, charging that it was full of tricks and errors, and urging the justices of the court not to be guided by it.

"I want to warn you against that brief," said Mr. Dorsey.

"You talk about trickery! Why, that brief is full of it."

In starting his argument, the solicitor outlined the circumstances pointing to Frank's guilt, as alleged by the state.

He took up first the fact that Frank, even before he was arrested, telephoned three times to Herbert Schiff and to Mr. Montag, president of the pencil factory.

This, he said, was a strong evidence of Frank's feeling of guilt.

As an evidence of the alleged misleading brief of the defense, Solicitor Dorsey drew attention to that part of it regarding Frank's whereabouts at 1 o'clock on the day of the crime.

By the testimony of Montine Stover, said the solicitor, she came into Frank's office at 1:05 o'clock and went out again at 1:10.

But the brief of the defense, asserted the solicitor, strove to create the impression that the Stover girl did (Continued on Page 4, Col. 2.)

PAGE 4, COLUMN 2

FRANK'S FATE RESTS WITH HIGHER COURT;

ARGUMENTS CLOSED (Continued from Page 1.)

not go into Frank's inner office, but stayed in the outer room.

TIME ELEMENT IMPORTANT.

The time, said the solicitor, had a great deal to do with the guilt or innocence of the accused.

In the early part of May, he went on to point out, when detectives had their last chance to confer with Frank and Detective Harry Scott asked him three questions regarding his whereabouts at 1 o'clock, the time of the Stover girl's visit, Frank told him he had not left the office.

The solicitor declared that Frank did not know of the Stover girl's evidence at that time, but that later h found it out.

Since then, his only statement about the time was when he told his own story on the stand, said Mr. Dorsey, when he admitted that it was possible, he might have gone into the lavatory while Monteen Stover was coming to the office.

Monteen Stover, said the solicitor, noticed that the partition door was closed, thus corroborating Conley's evidence.

Speaking of the piece of underskirt found, the solicitor declared that Frank probably used it to gag Mary Phagan when he heard Monteen Stover on the stairway, or perhaps used it to it to tie up the little girl's head so that blood might not drip on the floor.

In reference to Frank's "time alibi," his naming of the various friends he saw during the morning and afternoon of the day of the murder, the solicitor stated that Frank might have seen all these friends and yet had time to have done the deed the state accuses him of.

It is not with these that the state takes issue, declared the solicitor, but if the statement of Miss Kern, that she saw Frank on a downtown corner between 1:10 and 1:15 o'clock, is accepted, Frank's own statement on the stand must be rejected.

COURT ROOM FILLED.

During the solicitor's argument the small court room began to fill with an audience much larger than that of Monday.

Whereas there was but one woman in the room Monday, a dozen or more were present during Mr. Dorsey's speech Tuesday and every seat in the room was occupied.

Several persons strolled about in the aisles, although none were allowed to stand there.

The solicitor warmed to his work as his speech progressed, and was soon in his best style, brining out his points sharply and arguing in a fiery manner.

He took up the question of the financial sheet which Frank said he worked on Saturday afternoon.

"We hold," said the solicitor, "that Frank made out this sheet Friday afternoon and Saturday morning, Schiff's testimony was that he put in the 'starter' Friday afternoon and didn't even take the trouble to come down to the office Saturday.

Then, too, Frank made a date for the ball game for Saturday afternoon.

Your honor, Miss Hall, Montag's stenographer, testified at the coroner's inquest that she helped make out the sheet Saturday morning, although at the trial she declared she was mistaken.

We surprised Miss Fleming, Frank's former stenographer, into admitting at the trial that Frank was accustomed to work on the sheet Saturday morning."

JUSTICE STOPS ROSSER.

Attorney Rosser rose to his feet at this statement and appeared as if he wanted to interrupt, but Mr. Justice Evans stopped him.

Mr. Rosser only had time to say that he "couldn't let such a flagrant misstatement of facts go unchallenged" when the judge told him that the court intended to read every line of the evidence and that there was no necessity for any interruptions.

The solicitor declared the defense was right in saying Frank had business at the factory Saturday afternoon and that that was the reason he went there.

"He did have business," said the solicitor.

"He had to place the notes beside the little girl's body in case Conley didn't burn it up.

He had to pull the staple off the back door to make it appear someone had entered through it.

He had to turn down the gas lower in the basement.

He had to drop the girl's parasol through the elevator shaft.

He had to drop that length of twine down there."

SAYS LETTER WAS ALIBI.

Combating the contention of the defense that the letter Frank is said to have written to his uncle in Brooklyn Saturday afternoon shows his calmness of mind at the time, the solicitor declared it proved just the opposite.

"It was intended as an alibi," asserted Mr. Dorsey.

"It shows something had happened."

To support his statement, the solicitor quoted a sentence from the letter:

"It is too early for anything startling to have happened."

The solicitor went on to say that when Gannt came to the factory door Saturday afternoon Frank was so startled, according to Newt Lee's testimony, that he jumped back into the doorway, this despite the fact, said the solicitor, that he had seen Gannt twice since he was discharged.

"Frank knew Gannt knew Mary Phagan," said the solicitor, "and of all people in the world he didn't want to see her corpse lying there, it was Gannt."

Continuing his argument that Frank was nervous on that Saturday afternoon, the solicitor stated that, expert bookkeeper though he was, he yet forgot to put down the entry when Arthur White or Harry Denham came down and borrowed two dollars.

This entry was not made until a week later, declared the solicitor, when Schiff inserted it with a pencil.

Solicitor Dorsey exhibited the two notes found beside Mary Phagan's body.

"The defense contends that never in the history of crime were such illiterate notes written by a white man," said the solicitor, "but the state says that never did a negro take the time and trouble to prepare such notes.

The texture of the paper and everything connected with the notes showed that they came from upstairs and were not prepared there in the basement."

The solicitor returned to his attack on the alleged glaring misstatements in the brief of the defense.

On page 31 he pointed out a statement that not only was Frank nervous on the morning after the murder, but that, "Holloway, Schiff, Miss Flowers and all the others" were nervous, too.

As a matter of fact, said Dorsey, these people were not with Frank on Sunday morning, but on Monday morning.

The solicitor showed the statement of the defense's brief in which it referred to Frank's voluntary and free statement at the inquest."

"Yet this is the very statement," said Dorsey, "that the defense fought and prevented us from using at the trial."

Dorsey showed a point in the brief where the defense called attention to a $4,300 reward, not part of the evidence, claimed the solicitor, and therefore misleading.

"And these," he concluded, "are but a few of the many errors in the brief of the defense."

Shortly after 11 o'clock Mr. Dorsey concluded his argument.

"The state had a hard time to get this evidence, your honor," he pleaded.

"Most of it came from unwilling witnesses, developed on cross-examination.

But this kind of evidence should be considered the best and highest type.

They criticized me for subpoenaing witnesses to my own office and obtaining their affidavits; but for this fact this state could never have got the murderer of Mary Phagan.

They come up here now and ask you to upset the labor of weeks in the lower courts.

They claim that the verdict was a 'mob verdict.'

A claim, your honor, that is buncombe, pure and simple.

No incident ever occurred during the course of the trial to which Judge Roan did not furnish proper relief.

If there had been, why then did they not do as the law requires them to do, and make their objections then and there instead of waiting until after the trial was over?"

FELDER BEGINS ADDRESS.

Solicitor Dorsey concluded his argument in the Frank case at 11:10 o'clock Tuesday, having spoken three hours and thirty minutes.

He was followed immediately by Attorney General Felder, who declared:

"The state has thought it best to devote its time chiefly to a review of the facts in the case, believing that in this way the court would be aided in its determination of the law involved.

The evidence here is mountain high.

The jury were the final arbiters.

Jim Conley's testimony cannot be eliminated.

He may be a low, lying negro, but he is in the case, and it was the province of the jury to determine the value of his evidence."

"When Judge Roan overruled the motion for a new trial," said Mr. Felder, "he did it in plain unmistakable language.

There is no more right for a judge to impeach his own ruling than there is for a jury to recall their verdict after it has once been given.

A bill of exceptions cannot be used as a vehicle for a judge to register his men-he found difficulty in coming to the truth, but he found it, your honors. He performed his duty and your honors will not go behind it."

"Counsel for the defense has cited authorities, but nowhere did a higher court lend ear unless doubt was recorded in the motion for a new trial.

The matter is closed so far as this court is concerned, unless it appears Judge Roan manifestly abused his discretion.

In this case it appears he employed his discretion wisely."

NO DELAYED OBJECTIONS.

"This court cannot countenance the practice that counsel take chances, passing over occurrences that may happen that at the close of a trial make a blanket objection to all those things which have passed and ask for a new trial."

"If anything occurred in that trial it was the duty of counsel to arise at once and demand a reprimand or that the court room be cleared."

"But what was done? Judge Roan was not called upon or given an opportunity to give the relief which he is now criticized for not having given.

Twenty-nine days elapsed and then this court was asked to undo the whole trial."

"The jury was not in the court room at the time cheers were heard over Conley's perversion testimony."

"Even before receiving the verdict Judge Roan cleared the court room on his own motion and without the appeal of the counsel for the defense.

It is true the counsel for the defense.

It is true that while the jury was being polled applause was heard from outside, but how can you tell from the records what the applause was about?"

"Whoever committed this crime and the record clearly points is responsible for public opinion."

"The Frank case is no different from any other murder case, for there is no rule that takes this case away from those which we discuss in this court every month."

The attorney general went on to say that criticism of Solicitor Dorsey is not justified by the records.

As for the statement of Attorney Arnold, said Mr. Felder, that it hurt the defense for the state to argue that the failure of the defendant's wife to visit him in jail was an acknowledgement of guilt, Frank himself referred to this failure in his statement on the stand and tried to explain it.

If Frank himself tried to interpret this failure, argued the attorney general, why then was Solicitor Dorsey not at liberty to give his interpretation of it?"

Mr. Felder concluded his argument at 11:40 o'clock, and Attorney Luther Z. Rosser addressed the court for the defense.

He began by declaring that the attorney general was not familiar with the details of the case and, in fact, was hardly expected to be.

As to his statement that twenty-nine days elapsed before the defense objected, said Mr. Rosser, the defense asked before the trial ever started that the court room be cleared.

Referring to the testimony of Jim Conley, Attorney Rosser said:

"If I am a prophet or the son of a prophet, it is Conley's testimony on which this case is going to be reversed."

Conley's testimony, he argued, did not pertain to murder, on which charge Frank was being tried, but to another crime, perversion.

"We objected," said Mr. Rosser, "and we lost.

There was applause, triumphant applause, such as one hears at a bull fight.

We immediately moved for a new trial, but we were overruled. And we entered objection after objection all the way through."

Mr. Rosser scored Attorney General Felder for attempting to justify Solicitor Dorsey in arguing that because Mrs. Frank did not visit her husband at police headquarters, she must have been conscious of his guilt.

MADE WIFE "TESTIFY."

"I don't think any other attorney general has ever made such assertions in this court," said Mr. Rosser.

"That argument meant that Dorsey made the good wife sit in judgement against Frank and adjudge him guilt.

Under the law she couldn't testify, yet under the circumstances Dorsey literally made her testify against her husband. It was miserably unfair."

"Now Conley! If they did not have him their case would crumble as the snow before the sun.

The time element refutes all Conley tells.

Conley says he left Frank at the factory after disposing of the body and went to a nearby saloon: that he looked at a clock and saw that it was four minutes to 2.

Miss Kern says she saw him at home at 1:10.

Minola Mc Knight says she saw him at home at 1:30.

His Washington street neighbors saw him a little later.

That washes away everything Conley says.

Conley's most damaging evidence was his filthy lies about perversion.

The jury didn't find Frank guilty of murder but of perversion."

"This was brought in purely to inflame the jury's mind.

Why, Henslee said: 'I was clearly convinced he was a pervert.'

Why, your honors, perverts don't kill.

They are sickly, effeminate snides, groveling in the slime.

They never rise to the majesty, the manhood of murder."

"Read Conley's cross-examination. Read it!

It will make you ashamed he walks on two legs.

He positively has no regard for the truth.

Catch him in a lie and pin him down and he admits the lie.

He is the most oily liar and the most scoundrelly liar I've ever seen."

WRONG NEVER RIGHT.

"Illegal evidence can never be the basis for a legal verdict.

We objected to Conley's testimony and we objected to the testimony of Dalton, that disreputable creature who swore that he had seen women in Frank's office and that he had taken Daisy Hopkins to the factory.

We also objected to the testimony of the young women whom the solicitor examined as to Frank's character.

But the court permitted this evidence.

The law allows a man's general character to be shown so far as it is relevant to the issues on trial.

Dorsey said this murder grew out of the defendant's love for women, an idea which originated in his imagination."

"It would be just as relevant to admit testimony of a man's character for penuriousness when he is on trial for murder.

The thing that drives men to murder is the fierceness of nature, the thirst for blood, not licentiousness."

"The solicitor, backed by the power of a great state, argued before the jury that Frank was a pervert; therefore he was a murderer.

Is this to be sanctioned in a court of last resort?"

"Minola Mc Knight was locked up and held until she changed her testimony to suit the detectives and the prosecution.

And the attorney general justifies this.

He declares that the witness may complain of such treatment but we can't.

It was wrong to the witness, wrong to the state, but a much more horrible wrong to the defendant.

I have drawn a pitiable picture of the wreck and ruin which has been brought to this unfortunate man."

This closed the arguments.