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On This Day, 112 Years Ago: Prosecutor Hooper Contradicts the Defense's Waiver Claim
Atlanta Constitution, April 18, 1914
By Vicky Martin, Edited By Mary Phagan-Kean
Where the case stood that morning
By Saturday, April 18, 1914, Leo Frank had already lost at the August 1913 trial court, at the first motion for a new trial in October 1913, and at the Georgia Supreme Court on February 17, 1914, when that court affirmed the conviction by a vote of four to two.โท A motion for rehearing was unanimously overruled on February 25, 1914.
A second capital-punishment sentencing followed on March 7, 1914, with execution set for April 17, 1914, Frank's thirtieth birthday.
On Thursday, April 16, one day before that execution, Frank's defense team filed two postsentence motions in Fulton Superior Court. Judge Benjamin H. Hill, who had succeeded Leonard Roan on the bench, would later deny the extraordinary motion for a new trial on April 22, 1914, and the motion to set aside the verdict would be denied on June 6, 1914.โธ
On that Saturday morning, April 18, 1914, the Constitution published this article (see appendix), both motions were pending, the execution had just been stayed, and the press was tracking every movement out of the defense camp.
Hooper's position and why he chose to speak
The enclosed article states: Attorney Frank Hooper, who was associated with the prosecution during the convicted man's trial, made this statement yesterday to a reporter for The Constitution: "My connection with the Frank case ceased when it was decided by the Supreme Court. However, as to the incident of the defendant's absence at the time the verdict was received, I will say that in a conference with Judge Roan during the trial, I told him I thought it best for the defendant to agree personally to waive his presence, and I doubted that his counsel's consent was sufficient. The judge told me that he so understood, and that the defendant's personal waiver had been or would be obtained. I supposed, of course, that it had been obtained, and was surprised to see a denial of this in the extraordinary motion filed yesterday. The solicitor and myself were attempting to guard this point, and for that reason I mentioned the matter to the judge."
Hooper had been associated with the State's prosecution team and it's Solicitor General Hugh M. Dorsey, from mid-June 1913 through the February 1914 affirmance by the Georgia Supreme Court.
Hooper framed his statement with a clear boundary, noting that his formal connection ceased when the Supreme Court decided the case. Georgia's highest court affirmed the sufficiency of the evidence that sustained Frank's guilty verdict.
No Longer Directly Part of the Leo Frank Case
By April 1914, Hooper was no longer a paid advocate for the state. He was a private Atlanta lawyer commenting on a factual question he had direct personal knowledge of from the summer of 1913. That independence is what gives the reflective statement its weight. Hooper was not defending Dorsey's brief. He was correcting the historical record on a specific exchange with Judge Roan, who had presided over the murder trial. Roan would die less than a year later, on March 23, 1915, from complications related to prostate cancer. There is no record of Roan disputing Hooper's account in the intervening months. When Judge Hill denied the defense's motion four days after Hooper's statement appeared, the ruling was consistent with Hooper's version of events rather than Frank's defense attorneys.
The substance of what Hooper said is narrow, but damaging to the Tye motion. During the final days of the 1913 trial, in a conference with Judge Roan, Hooper told the judge he thought it best that Frank personally waive his presence and that counsel's consent alone might not be sufficient. Roan replied that he understood the point and that Frank's personal waiver had been or would be obtained. Hooper assumed the issue was being substantiated by the defendant. He read in the April 17 motion that the defense now denied any such personal waiver ever existed, and he was surprised enough to correct the record publicly.
Ambushed or Trap Denied? The defense's story then and the defense's story now.
What this does to the defense's constitutional theory is precise. The Tye motion treats the waiver as something the defense quietly agreed to under judicial suggestion, without Frank's knowledge. Hooper's statement describes the prosecution and the court actively attempting to guard this point during trial, exactly because they understood its potential reversibility. If Hooper is correct, Judge Roan at the time understood the need for Frank's personal waiver, raised it with counsel, and represented that it either had been or would be obtained. That converts the defense's April 1914 claim from "we were ambushed by a constitutional irregularity" into "our representation to the court in 1913 does not match the story we are telling in 1914."
Why Burns sits at the top of the same column
The first part of the article, reporting on the imminent return of William J. Burns and his forthcoming investigative report, is not a separate story. It is the same story. Burns was, by that point, part of the Frank defense fund's operational infrastructure, hired and paid through defense channels.โน His report, said by the Constitution to be in "process of formation," was designed to be released in a way that would appear to be the product of neutral outside investigation. Placed beside Hooper's correction on the waiver question, the reader can see two contrasting pictures. The defense is about to publish a curated detective report that will read as feigned independent inquiry. Hooper, the former state's co-counsel, speaking on his own initiative, is already on the record in the same column demonstrating that the constitutional motion the defense filed two days earlier does not line up with what actually happened.
What happened next and why this statement matters
Hooper's April 18, 1914, statement partially foreshadows the precise ground on which Frank's constitutional claim would be rejected in the state courts and later in Frank v. Mangum.
On November 14, 1914, the Georgia Supreme Court affirmed denial of the motion to set aside the verdict, holding that the issue of Frank's absence should have been raised in the original motion for a new trial filed in 1913, and characterizing the belated argument as "trifling with the court."ยนโฐ
When an appellate court accuses a litigant of "trifling with the court," the charge is procedural, not rhetorical. In this case it is saying that the litigant had every opportunity to raise a given issue at the proper time, but chose not to, and is now raising it belatedly in a way that forces the court to revisit matters it has already decided. The accusation is not necessarily the argument is frivolous on its face, it could very well be valid. The accusation suggests the timing and the maneuvering show disrespect for the orderly process by which claims are supposed to be presented. It is a judicial way of saying, "you are not acting in good faith with this court."
Had the waiver objection been raised in the 1913 motion for a new trial, when the record was fresh and the procedural default rule did not yet apply, the constitutional claim would have been heard on its merits. Whether it would have succeeded is a genuine question, and one that the courts' own procedural rulings in 1914 never answered.
The United States Supreme Court, in Frank v. Mangum on April 19, 1915, agreed that Georgia could constitutionally treat a waiver as inferrable from the defendant's conduct in filing a motion for a new trial on other grounds, while aware of the facts, and rejected the due process claim.ยนยน In other words, the courts ultimately held that Frank had the knowledge and opportunity to raise the waiver issue in 1913 and did not.
Hooper's April 18, 1914 statement tells you what was actually going on in that courtroom of August 1913. The prosecutors and the judge knew Frank needed to personally waive his presence, they talked about it openly, and they believed it was being taken care of. When the defense later claimed Frank had no idea, they were describing a courtroom that did not match the one the judge and the lawyers remembered.
Placement in the Legacy Project record
For Legacy Project purposes, this article belongs in the April 1914 sequence alongside the April 15, 16, and 17 Atlanta papers. It is the first clear statement from any member of the prosecution team responding on the record to the Tye motion, and it predates by four days Judge Hill's denial of the extraordinary motion on April 22, 1914. Hooper's words function as contemporaneous rebuttal, not retrospective reconstruction, and they have value on that ground alone.
Sources
1. Linder, D. O. (2025). Chronology of the Leo Frank case. Famous Trials. https://famous-trials.com/leo-frank/27-home
2. Leo Frank Case Archive. (2025). The appeals of Leo Frank 1913, 1914, and 1915. https://www.leofrank.org/trial-and-evidence/appeals/
3. Justia. (2025). Frank v. Mangum, 237 U.S. 309 (1915). U.S. Supreme Court Center. https://supreme.justia.com/cases/federal/us/237/309/
4. Leo Frank Case Archive. (2025). Frank Hooper aids Phagan prosecution. https://www.leofrank.org/frank-hooper-aids-phagan-prosecution/
5. Leo Frank Case Archive. (2025). Mr. Frank Arthur Hooper, closing arguments for the prosecution team in the Leo M. Frank murder trial, August 21, 1913. https://www.leofrank.org/trial-and-evidence/prosecution/mr-hooper/
6. Leo Frank Case Research Library. (2025). Prosecution side of the Leo M. Frank case and review. https://leofrank.info/trial-and-evidence/prosecution/
7. New Georgia Encyclopedia. (2024, January 9). Leo Frank case. https://www.georgiaencyclopedia.org/articles/history-archaeology/leo-frank-case/
8. Leo Frank Case Archive. (2025). Leo Frank court appeals: August 27, 1913 to April 1915. https://www.leofrank.org/trial-and-evidence/appeals-2/
9. Leo Frank Case Archive. (2025). About the Leo Frank case research library archive and the Mary Phagan murder mystery. https://www.leofrank.org/about/
10. Cornell Law School, Legal Information Institute. (2025). Leo M. Frank, Appt., v. C. Wheeler Mangum, Sheriff of Fulton County, Georgia. https://www.law.cornell.edu/supremecourt/text/237/309
11. Public Contributors. (2026, April). Leo Frank. Wikipedia. https://en.wikipedia.org/wiki/Leo_Frank
Images and Animation
Frank Arthur Hooper, a member of the State's prosecution team in the 1913 trial of Leo Frank, Atlanta, Georgia: Two original black-and-white photographs, an AI-rendered color portrait, and a short AI animation generated from the archival images.
Appendix: Transcription
Report By Detective Burns Expected Today
The Atlanta Constitution,
Saturday, 18th April 1914,
PAGE 12, COLUMN 5.
If Detective William J. Burns returns to Atlanta today as expected, it is likely that his report on the investigation of the Frank case will be submitted tonight and published Sunday morning. Nothing has been given out yet of the detective's mysterious out-of-town trip. Officials of his organization said yesterday, however, that he was expected back at any time on Saturday. The report is now in the process of formation. Various angles of the evidence said to have been unearthed by the noted sleuth and his assistants have been put in the shape of supplements, which will form the main body of the report.
Regarding the motion by Attorney John L. Tye to set aside the Frank verdict on grounds that the prisoner, in not being present at the return of the jury's decision, was deprived of his constitutional rights, Attorney Frank Hooper, who was associated with the prosecution during the convicted man's trial, made this statement yesterday to a reporter for The Constitution: "My connection with the Frank case ceased when it was decided by the Supreme Court. However, as to the incident of the defendant's absence at the time the verdict was received, I will say that in a conference with Judge Roan during the trial, I told him I thought it best for the defendant to agree personally to waive his presence, and I doubted that his counsel's consent was sufficient. The judge told me that he so understood, and that the defendant's personal waiver had been or would be obtained. I supposed, of course, that it had been obtained, and was surprised to see a denial of this in the extraordinary motion filed yesterday. The solicitor and myself were attempting to guard this point, and for that reason I mentioned the matter to the judge."