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Mary Phagan Murder Case New Insights Emerge After Leo Frank’s Conviction for Homicide: Was it the providence of disingenuousness speaking backward through time, sending a message of truth from the past to the then-present, and from the then-present into the now-future?
What does it say about the defense’s post-trial motions and appeals that they tried to sell the trial as Juden-hetze, yet, of all the men they might have recklessly smeared, they thoughtlessly chose Henslee to smear as an antisemite, the one juror who first stood against hanging Leo Frank? More than that, Henslee was the lone holdout on the first ballot during jury deliberations, when the vote stood 11 to 1. He was the one voting for acquittal. That curious point is not fully covered in this article, but it belongs in the background of the case and emerged later, when the jurors were confronted about their impressions.
This is one of the stranger twists in the Leo Frank trial: the man later branded by Frank’s attorneys as a rabid antisemite was the same holdout who initially resisted the death penalty as the sentencing recommendation. It cuts straight across the appeals team’s strained storyline. Their attack on Henslee was wanton, crude, desperate, and self-exposing.
It raised the question:
If Henslee was driven by blind hatred of Leo Frank as a Jew, why was he the only man on the jury who first resisted the gallows?
The October 12, 1913, article in The New York Sun makes that contradiction even harder to dodge. The paper does not present antisemitism as the starting point of the case. It says the feeling may have developed in some as a reaction after Frank’s indictment, when some of Frank’s supporters began turning the murder case into a tribal fight. According to the article, some Jews publicly argued that Frank could not be guilty because he was Jewish, and that “even if he were guilty Jews would spend thousands to prevent his conviction.” That hyper-tribal centrism turned out to be profoundly true in hindsight, according to numerous modern Jewish sources reflecting on the case. Then comes the uglier line: some were credited with saying that even if Frank had killed Mary Phagan, she was “nothing but a factory girl.”
There is the rotten underside of the Frank campaign that modern retellings almost never touch. A thirteen-year-old child laborer was treated as disposable, while Frank was lifted up as a communal cause. The Sun describes a hardening us-versus-them mood around Frank, regardless of his actual innocence or guilt, and says that this helped produce a Gentile backlash. In that version of events, religious hostility was not the state’s theory of guilt. It grew out of the pressure campaign around Frank, the money, the influence peddling, the public cries of Jewish persecution and Juden-hetze, and the willingness of some of his defenders to treat Mary Phagan’s life as less valuable than Atlanta B’nai B’rith President Leo Max Frank’s.
That is why the Henslee post-trial revelation wounds so deeply. Frank’s defense attorneys wanted to make him a symbol of anti-Jewish hatred, yet Henslee was the juror who first leaned toward mercy and acquittal. That reality does not fit the modern Jewish victimology fable. The Sun’s article gives us a much rougher picture: a murder case that became a political and religious pressure campaign, with Mary Phagan shoved aside as “nothing but a factory girl” while Leo Frank’s supporters tried to turn him into the real victim. That narrative of victimhood persists today with renewed fervor.
Appendix: Article Transcription
October 12th, 1913, The Sun, Page 6
JEWS FIGHT TO
SAVE LEO FRANK
Countrywide Appeal for Man
Convicted of Killing
Mary Phagan.
RACE HATRED CHARGED
Motion for New Trial in
Georgia Halts the
Hangman.
NEGRO'S STORY UNSHAKEN
Defense Hopes to Show That
He Shelved Guilt on
Leo Frank.
ATLANTA, Georgia, October 11, 1913 — Although Leo M. Frank has been tried, convicted and sentenced to death for the murder of fourteen-year-old Mary Phagan, interest in the case continues as keen as when the condemned man was facing the jury. This is due to the fact that Frank's friends have denounced the verdict as a monstrous perversion of justice and have begun a campaign that is almost nationwide to get a reversal.
Frank was sentenced to be hanged on October 10, 1913, but a motion for a new trial prevented the sentence being carried into effect. This motion has not yet been argued but probably will be in two weeks. If Judge Roan, who presided at the trial of Frank, denies the motion, the case will be taken to the Georgia Supreme Court, and should that tribunal refuse to interfere Frank's attorneys say they will take the case to the United States Supreme Court, though it is difficult for a layman to see what Federal question is involved. In all the criminal history of Georgia no such determined fight has ever been made for a convicted man as is being made for Frank, and the vigor of the fight has much to do with keeping interest in the case keen.
Fight Against Verdict.
In their motion for a new trial Frank's attorneys give 115 reasons why the verdict against him should not be allowed to stand. Most of these reasons seem to be merely technical, but several of them, if true, seem to be substantial enough to warrant a new trial. Among other things, it is alleged that the feeling against Frank in Atlanta was so bitter that it was not possible for him to have a fair trial; that the "mob spirit" invaded the court room during the trial and intimidated the jury into returning a verdict of guilty, and that there were men on the jury who had said before being summoned for duty that Frank was guilty and that they wanted to get on the jury to "break his neck." To sustain these charges Frank's attorneys have introduced affidavits from a number of persons to show that one juror said that he intended to get on the jury and that he would "hang it until hell froze over" unless a verdict of guilty were returned. This juror is R. H. Henslee, and he was the first man of the twelve chosen to try Frank, neither the State nor the defense making objection. Solicitor-General Dorsey is now engaged in preparing an answer to these charges of the defense and as soon as he is ready the matter will be argued before Judge Roan. Just how the State will controvert the charges made against Juror Henslee remains to be seen, for the affidavits affecting him are sworn to by reputable citizens. If the defense can substantiate its charges against Henslee it is difficult to see how a new trial can be refused. This action, however, would only reflect on Juror Henslee and would not weaken the circumstantial and direct evidence which brought about the conviction of Frank.
An impression seems to prevail outside of Atlanta and Georgia — and this impression has been sedulously cultivated by Frank's friends — that he was convicted on purely circumstantial evidence.
Erroneous Impression.
This impression is entirely erroneous. There were powerful circumstances which pointed to Frank as the despoiler and murderer of little Mary Phagan and these circumstances would have made his acquittal difficult even if there had not been a shred of direct evidence to connect him with the crime. But the State had the evidence of an eye witness to support the circumstances which first caused the arrest of Frank. This witness was the negro James Conley, who swore that he came upon Frank bending over the body of Mary Phagan, that Frank confessed he had made improper advances to the girl, that she resisted and that he struck her and she fell unconscious. The negro also swore that Frank saw he had gone so far that he killed the girl to protect himself. Frank then, according to the negro's story to the jury, bribed the latter to take the girl's body to the basement and conceal it until opportunity offered to burn it in the furnace. It was this story, told by Conley to the jury, which clinched the circumstances against Frank and resulted in the verdict of guilty. And it is this story which Frank's attorneys will have to break down to free their client in the event that he gets a new trial and faces another jury.
Murdered in a Factory.
Mary Phagan was murdered on Saturday, April 26 — Confederate Memorial Day — in the National Pencil factory, of which Leo M. Frank was superintendent. The little girl had been employed in the factory for some months, but had been laid off a few days on account of a shortage of material. There was a small sum due her and she went to the factory on April 26 to get her money and then take part in the Memorial Day parade. The girl was to get her money from Frank, who paid off the employees. She left home about 11:30 in the morning, reached the factory about noon, entered Frank's office and was never seen alive again. It was a holiday and Frank was alone in the building with the exception of two workmen two floors above Frank's office. Frank admitted that the girl came to his office, but he says he paid her and that she left the building.
About 4 o'clock Sunday morning Newt Lee, the negro night watchman, in making his rounds came upon the girl's body in the basement. The negro at once telephoned the police, who came and moved the girl's body to the morgue. Examination showed that the girl had been stunned by a blow on the head and then strangled to death by a cord which was pulled so tightly as to cut into the flesh of her neck. Physicians also declared that she had been subjected to sexual violence.
Did Not Identify Her.
Frank, as superintendent of the factory, was notified of the finding of the body and the police went to his home Sunday morning and brought him to the morgue to identify the girl. Frank said he did not know who she was. Later on Sunday the body was identified as that of Mary Phagan by a girl friend. Meanwhile a search of the basement by the detectives resulted in the discovery of two badly written and badly spelled notes, purporting to have been written by Mary Phagan, saying that a negro "did this." The police arrested Lee, the negro night watchman, and also Arthur Mullinaux, a young white man, who knew Mary Phagan. Later James M. Gantt, former bookkeeper at the factory, was arrested as a result of a statement by Frank that Gantt had seemed to be fond of Mary Phagan.
The Coroner's jury was in session several days and heard many witnesses. Gantt and Mullinaux proved alibis and were released. Finally the Coroner's jury ordered that Leo Frank and the negro, Newt Lee, be held for the Grand Jury. While Frank was in jail awaiting the action of the Grand Jury the police arrested James Conley, the negro sweeper at the factory, on suspicion of knowing something about the crime. Conley was grilled by the detectives and finally told the story, which he afterward related on the stand, to the effect that Leo Frank killed the girl after making improper advances to her and hired him (Conley) to help dispose of the body. Conley told several versions of the tragedy, but never varied from the main charge that he found Leo Frank bending over the body of the girl and was hired by Frank to take the body to the basement.
Indictment of Leo Frank.
On this evidence Frank was indicted [May 24, 1913] and on July 28, 1913, he was put on trial for his life. The State first established the circumstances which incriminated Leo Frank, the chief one being his own admission that Mary Phagan came to his office about noon on April 26, 1913. The State proved that the girl was never seen alive after she entered Frank's office and witnesses were introduced to swear that blood spots were found on the floor of a room just in the rear of Frank's office. The State also proved that Frank was alone in the factory nearby all of Saturday morning and all of the afternoon. It was also proved that when Newt Lee, the night watchman, came on duty at 4 o'clock Saturday afternoon Frank sent him away and told him not to come back until 7 o'clock.
The State also introduced an affidavit made by the negress who cooked for the Frank family to the effect that Frank was greatly disturbed on Saturday night and that she heard Mrs. Frank tell her mother that Frank tried to kill himself during the night. All of this was preliminary to the direct evidence against Frank of the negro Conley. Conley repeated at length the charge he made in his affidavit about Frank killing the girl and in addition told of acts of sexual perversion by Frank. Conley had been at the factory for two years and said that he had been employed as a lookout by Frank whenever the latter had girls in his office, which was almost weekly, according to Conley.
Acted as a Lookout.
The negro's story was one of the most remarkable and revolting ever told in a court room, and much of it was unprintable. He swore that he was acting as lookout for Frank the day Mary Phagan went to Frank's office and that half an hour after the girl entered he was summoned by Frank, who told him that the girl had resisted his advances, that he had struck her too hard, and had killed her to keep her from telling of his assault on her. In pantomime Conley reenacted before the jury how he and Frank took the girl's body to the basement, where it was later to be cremated in the furnace. Conley said Frank agreed to give him $200 to keep silent, and he said he had remained silent until Frank deserted him and seemed to be trying to fasten the crime on him. The negro was cross-examined for two days by Luther Z. Rosser, one of Frank's attorneys and one of the leaders of the Georgia bar, but the witness never varied from his story. Trap after trap was set by Rosser, but the negro refused to walk in.
Conley's Story Supported.
The State put on witnesses who corroborated Conley's story as to his presence at the factory on the Saturday of the crime. These witnesses swore they saw Conley at the street entrance of the factory. For Frank the defense first tried to establish an alibi. It was sought to account for every minute of his time on the day of the murder and to show that he was at home at luncheon when Conley swore that the body of Mary Phagan was being disposed of by himself and Frank.
The theory of the defense was that Conley murdered the girl and that to save his own neck he told the story involving Frank. By many witnesses Frank's time was accounted for on Saturday, but over against this was Frank's own admission that he was practically alone in the factory nearly all of Saturday and that Mary Phagan came to his office. It was proved that she was never seen alive after entering the factory. The defense then put Frank's character in evidence. Many witnesses, most of them Jews, testified that his character was good. Rabbi Marx was one of these witnesses. He told how Frank was president of the local B'nai B'rith and what an interest he took in the synagogue. Many girls, employed at the pencil factory, were called who testified that Frank had always been respectful in his conduct toward them. In rebuttal, the State also called other pencil factory girls, who swore that Frank's character was bad in regard to women and who related specific instances of his conduct.
Leo Frank's Statement.
Then Frank made a statement in his own behalf. It was a remarkable statement, covering every minute of the day of the crime. Frank, apparently, was able to remember everything that he did no matter how trivial. In fact, his memory for detail seemed uncanny. The summing up took several days. Luther Z. Rosser and Reuben Arnold, both leaders of the Georgia bar, spoke for two days in behalf of Frank. They charged that the negro Conley killed Mary Phagan and that his story involving Frank was told to save his own life. They also charged that the detectives, for reasons of their own, were bent on convicting Frank and that they had drilled Conley in his story. It was during Rosser's speech that the first reference was made to Frank's race. Rosser charged that Frank was being prosecuted because he was a Jew and asserted that the detectives were in a conspiracy to convict him. [The Jewish persecution accusation was likely attorney Reuben Arnold that made the assertion]
Resented Racial Argument.
Solicitor-General Dorsey, summing up for the State, attacked Rosser for alluding to Frank's race. Dorsey showed how Mullinax, Gantt and Lee had all been arrested before Frank and said that action had been taken against the latter only because of the overwhelming evidence against him. Dorsey alluded to the fact that one of his own law partners was a Jew to show that he had no racial prejudice.
Judge Roan's charge was brief and said to be absolutely impartial. The jury retired and in forty minutes returned a verdict of guilty without recommendation to mercy, which meant that Frank must be hanged. Two ballots were taken — one as to Frank's guilt and the other as to whether he should be recommended to mercy, which would have meant life imprisonment. On the first ballot the jury was unanimous that Frank was guilty. On the question of recommending to mercy eleven jurors were for the death penalty and one for mercy, and he joined the majority.
Henslee Voted for Mercy.
Strange to say, the juror who voted for mercy was A. H. Henslee, who is now being charged by Frank's attorneys with having said before he was summoned for jury duty that Frank was guilty and ought to have his neck broken.
There was a great crowd about the court house, and when the verdict of guilty was announced a mighty cheer went up. As Solicitor-General Dorsey came out of the court house he was seized and carried on the shoulders of several men to his office across the street.
Since Frank's conviction much has been said to make it appear that he was the victim of race prejudice and that he was convicted because he was a Jew.
The facts hardly bear out this charge. It is generally conceded that if the circumstances and direct evidence had involved Mullinax and Gantt, the two young Gentiles first arrested, instead of Frank they probably would have been lynched.
At first there was absolutely no prejudice against Frank because of his race. Atlanta has probably been freer of the Juden-hetze spirit than any city in the South. Jews have been repeatedly elected to office and none was ever opposed because he was a Jew. Five Jews were on the grand jury that indicted Frank and they can hardly be accused of racial prejudice.
Prejudice Developed.
Prejudice did finally develop against Frank and also against the Jews, but Frank's friends were responsible for this anti-Semitic spirit. After Frank was indicted many Jews began to assert publicly that Frank was not guilty, that being a Jew he couldn't be guilty and that even if he were guilty the Jews would spend thousands to prevent his conviction.
Some Jews were credited with saying that even if Frank did kill Mary Phagan she was nothing but a factory girl. Such remarks as these soon caused a decided anti-Semitic feeling and it continued to grow during the trial of Frank. The feeling was increased when Frank's mother, who came here from Brooklyn to attend her son's trial, denounced Mr. Dorsey in the court room as "You Christian dog." The anti-Semitic feeling was the natural result of the belief that the Jews had banded to free Frank, innocent or guilty. The supposed solidarity of the Jews for Frank, even if he was guilty, caused a Gentile solidarity against him. That is the truth about Frank being the victim of Juden-hetze.
Feeling in Rural Districts.
No one, of course, can forecast the ultimate outcome of the case. Frank may get a new trial, but the general opinion is that he will be promptly convicted again if he is tried in Atlanta and if the State introduces the same evidence. If he should receive a change of venue and the case sent to a rural district, Frank would be in a worse position if possible, for the conviction that he is guilty is almost unanimous in the country counties. Circumstances, admitted by Frank and his attorneys, make the case dark against him, and when these circumstances are backed up by the direct evidence of Conley, the State's case becomes almost impregnable unless Conley's story be shattered. Conley may be lying but until he is proved a liar Frank will have little chance before a Georgia jury.
Reference
The Sun. (1913, October 12). Jews fight to save Leo Frank: Countrywide appeal for man convicted of killing Mary Phagan. The Sun, p. 6.