The Atlanta Constitution,
Thursday, 23rd October 1913,
PAGE 1, COLUMN 2.
Tried and Convicted
by the
Courtroom
Spectators and
Not by the Judge and
Jury,
Declares Rosser.
TODAY'S HEARING
MAY
LAST UNTIL
MIDNIGHT
Fight Is Bitter Over
Conley's
Testimony, Defense
Declar-
ing That It Should
Never
Have Been
Considered.
Declaring that the crowd and not the judge and jury tried
and convicted Leo M. Frank of the murder of Mary Phagan, Luther
Rosser, senior counsel for the prisoner, yesterday urged the many
demonstrations for the solicitor general as sufficient reason why
the convicted superintendent should have another trial.
This was, however, but one of the forty grounds argued
Wednesday when the hearing began before Judge Roan in a little
anteroom in the state library at the capitol. As 115 objections
have been noted to the rulings in the case, it will be several days
at least before a decision will be reached.
The proceedings are as tedious as the original trial was
dramatic and thrilling. Both the solicitor and counsel for the
defense fight bitterly and desperately over every detail.
Wrangling and debate occupied more than two-thirds of the first
day's session.
The hearing had hardly begun when Rosser blazed at
Solicitor General Dorsey, who prosecuted the prisoner, the charge
that he was striving to hang Frank on any pretext, matter not how
small:
You would kill him on the dotting of a T or the crossing of a
t.'
And you, retorted the solicitor, with equally as much
display of spirit, are trying to make a mountain of a mole hill.
Forty Clauses Examined.
The entire day was spent in examining forty of the 115
grounds contained in a single volume which the defense offers for
a new trial. Neither side seemed to gain much headway. Heated
disputes arose over many of the points, and much time was lost
in going back over records and history of the case.
The hearing would undoubtedly have run into a night session
had it not been for the closing hour at 6 o'clock of the library.
Tonight the session will likely be held until midnight or later. It is
Judge Roan's expressed wish that the hearing be ended just as
early as possible.
A tense battle was staged over the testimony of Jim Conley
when the defense presented many parts of his story as grounds
for new trial. The fight was entirely as spectacular as the one
waged against Conley's story during the trial. The result,
however, was the tabling of those particular grounds pertaining to
Conley for future examination.
Other grounds that were bones of contention between the
prosecution and defense were those that related to testimony at
the trial of Frank's immorality. It was while the story told by the
Jackson girl of Frank looking into a girl's dressing room while she
was disrobing was being discussed that the session came to an
end at 6 o'clock.
Hearing Behind Closed Doors.
Solicitor Dorsey was assisted by his assistant, E. A.
Stephens, while Colonel Rosser and Colonel Arnold were aided by
Stiles Hopkins and others. The hearing was behind closed doors,
less than a dozen persons, including reporters being admitted. It
will probably last at least a week, though some say it will come to
an end next Saturday.
So far, nothing has been mentioned of the affidavits
charging bias against Jurors Johenning and Henslee. No witnesses
have been examined. Only forty of the grounds given in the
petition for a new trial have been considered.
Each clause is read by the defense. Objection"if there be
any"is made by the solicitor. Argument follows. An end of which
is the checking of the reason by Judge Roan for future use. It will
require probably all of today to finish examining these 115
sections.
An agreement has been made between the two sides to
admit any new evidence which might arrive for either defense or
prosecution at the time it appears. This was done because both
sides expect to obtain new affidavits relative to the jurors.
Both Mr. Arnold and Rosser objected vigorously at the
opening of the hearing to reference to the records for argument
presented by either the defense or solicitor. The stenographers,
they declared, had recorded the argument inadequately, and that
the only successful manner in which they could go back to
argument of any kind during the trial was by memory.
Agree to Use Records.
It was agreed, however, to use the records. This was done
after much
Continued on Page Two.
PAGE 2, COLUMN 4
FIGHTS FOR FRANK
Photo by Francis E. Price
HERBERT HAAS.
Photographed for Constitution Wednesday while Frank hearing
was in progress. He is associated in the case with Arnold and
Rosser.
PAGE 2, COLUMN 4
CROWD RAN TRIAL
SAY FRANK'S
LAWYERS
Continued From Page One.
protest, during which Solicitor Dorsey said: It is a remarkable
thing about this business that the court stenographers failed to
accurately record any of the important arguments"or, rather, any
of those contained in the motion for new trial.
This is the first time I've ever heard of such a thing
happening. There isn't a man on earth who could recall those
objections and arguments. It is strange"exceedingly strange"if
they are not recorded as completely as they should have been.
One section objected to the admission as evidence of the
talk of Detective Starnes over the telephone with Frank on the
morning of the murder's discovery in which Starnes testified at
the trial that he was guarded because of importance of the
message he was conveying.
Among the other sections considered were the following:
The admission of the state's diagram of the pencil factory
building to be used as evidence, and which was marked with
Greek crosses and dots to outline the state's theory.
The admission of Black's testimony of Frank's conduct on the
day of the discovery, which he compared with previous days.
The testimony of Black to the effect that counsel had been
obtained by the time Frank was first carried to police
headquarters.
Argue Over Bloody Shirt.
The failure of the court to admit Newt Lee's admission of
owning the bloody shirt as testified to by Witness John Black.
The court's failure to exclude a number of questions and
answers of Jim Conley's testimony, which, the defense alleged,
was highly prejudicial, and which involved transactions far
removed from the real issue.
To this particular section, the solicitor answered that
objection to Conley's story was not made until twenty-four hours
after it was given. Also, that objection was made not until the
defense had examined the witness in question.
A long argument lasting hours resulted over this. Colonel
Arnold declared that Conley was not cross-examined upon the
salacious part of his story, but merely regarding dates and
incidents connected with his watching at the first door while Frank
was alleged to have entertained girls and women on the office
floor.
At the close of the dispute Colonel Rosser said:
If this testimony of Conley's is admissible, why, we'll take
our medicine. If not, we have been done a horrible injustice. And
we're not going to say we let that particular testimony hang this
man. It won't. It can't.
Of the other reasons named in the motion, the first following
this dispute to be considered was the section relating to the
negro's story. It was an objection to Conley's statement that the
had seen Frank in a position with women in which he had never
seen any other man with children. Objection was made on the
grounds that it was highly prejudicial.
Made Too Late, Says Dorsey.
Dorsey's answer to this was that all objections to Conley
were made after the defense had examined him thoroughly.
It was during the presentation of this section that Colonel
Arnold accused Dorsey of having been guilty of contempt of court
in having violated a rule of Judge Roan's during Conley's
examination.
We objected strenuously to any testimony of Frank being in
his office with women. We received your ruling, your honor,
Dorsey ignored it. It could have been construed that Frank was
committing most any crime.
Yes, laughed the judge, maybe such a crime as dancing
the tango.
Which would be considerable crime, rejoined the lawyer.
Other reasons were:
Because the court permitted Conley to tell of the trip on
which he was taken by the police to interview Frank in the jail,
and which he failed to do.
Solicitor Dorsey Objects.
Because Mrs. Mattie White was allowed to take the stand to
tell of her conversation with detectives on May 7 when she told of
having seen a negro loitering on the first floor of the pencil
factory during the afternoon of the murder date.
A strong objection was made to this reason by the solicitor,
who said:
It was admissible evidence solely because her failure to
report it immediately tended to show an effort toward
concealment, which undisputedly bore indication of Frank's guilt.
Because the court permitted Sheriff Mangum to tell of his
conversation with Frank when he strove to obtain the prisoner's
permission to talk with Conley in the presence of Chief Beavers
and Harry Scott, the Pinkerton man.
Because Dr. Harris was allowed to tell of cabbage tests he
had made on other men and to draw his own conclusions before
the court of the time Mary Phagan met her death.
Because Jack Dalton was allowed to give testimony of
matters and incidents which bore no remote relation to the issue
at trial, and the exploitation of which, according to contention,
was designed to create prejudice.
A strong plea"in fact, one of the strongest the defense
claims in its first volume of grounds"is the record of
demonstrations of the crowds during the trial. When these records
were offered in the afternoon, Solicitor Dorsey replied:
Your honor is thoroughly acquainted with these instances. I
have nothing to say of them.
Defense Gains a Point.
After which Mr. Arnold requested Judge Roan to certify that
the jury was near enough to hear the applause that rang out at
times in the courtroom. Mr. Arnold also suggested a practical
demonstration, offering to go to the scene of the trial for such a
move.
To this the solicitor answered:
It is a matter of evidence, and should be told by the jurors,
not the judge.
Mr. Rosser broke in:
But the juror won't admit it.
We have affidavits from most of them saying they never
heard the outbreaks, said Dorsey.
The result was the recording of Judge Roan's opinion that the
jury was situated within distance sufficient to hear any of the
demonstrations in the courtroom.
The testimony of Herbert Schiff, chief clerk of the pencil
factory, was also brought up during the hearing. One of the
motion's reasons was based on the colloquies between the
solicitor and Schiff, when Dorsey, upon examining the witness
from a personal standpoint, announced to the court that he was
trying to show the chief clerks feeling in the case.
Tried by Crowd.
It was during the argument over demonstrations in the
courtroom that Colonel Rosser declared heatedly that it was his
intention to show Judge Roan that it was the crowd and not the
judge or jury who conducted the Frank trial and convicted him.
This declaration was laughed at by the solicitor.
At the introduction of each section, Judge Roan made
particular note of it and also the protest"whenever there was a
protest"made by the solicitor. Each of the grounds will be probed
before they are taken into consideration. This will take
considerable time.
Today's session will begin at 9 o'clock this morning.
PAGE 7, COLUMN 2
Curious Citizens
Barred
From the Frank
Hearing;
Many Go to Wrong
Place
Surprisingly large numbers of people congregated yesterday
in and about the cold city hall on Pryor street, expecting to be
admitted to the hearing which they believed to be in progress in
the structure on the motion of the attorneys for Leo M. Frank for a
new trial.
As early as 8 o'clock Wednesday morning there was a
regular stream of men weaving in and out of the old city hall
refusing to believe the word of the attendants of the various court
rooms that the Frank hearing was not in progress there. The
visitors or would-be auditors, continued their vigil during the
afternoon hours, but to no avail.
In the crowds which were about the temporary courthouse
were seen many of the men who managed to attend the daily
sessions of the original Frank trial.
On account of the court being held in the first floor
courtroom by Judge Calhoun, the Frank hearing was transferred to
the library at the state capitol. The public has been barred from
the rooms, only the attorneys on both sides, Judge Roan and the
newspaper men engaged in the actual work of following the
retrial motions, being admitted. Deputy Sheriff Plennie Minor is on
guard at the capitol.
PAGE 11, COLUMN 4
PROFESSIONAL
CARDS
P. H. Brewster, Albert Howell, Jr.
Hugh M. Dorsey, Arthur Heyman,
Dorsey, Brewster, Howell &
Herman,
Attorneys-at-Law.
Offices: 202, 204, 205, 206, 207,
208, 210
Kiser Building, Atlanta, Ga.
Long-Distance telephone 3022,
3024,
and 3025, Atlanta, Ga.