Mary Phagan [Laws F20]
DESCRIPTION: Mary Phagan works in a pencil factory. While there she is beaten to death by Leo Frank. An innocent bystander (who happens to be black) is arrested, but then Frank's guilt is established and he is sentenced to death
AUTHOR: unknown
EARLIEST DATE: 1918 (JournalOfAmericanFolklore XXXI)
KEYWORDS: homicide accusation factory abduction rape execution lie abuse mother corpse Jew
HISTORICAL REFERENCES:
April 26/27, 1913 - Murder (and suspected rape) of thirteen-year-old Mary Phagan at the National Pencil factory in Atlanta
Aug 26, 1913 - Despite evidence that Jim Conley committed the murder, Leo Frank found guilty of the crime and sentenced to death
June 22, 1915 - Georgia Governor Stanton commutes Frank's sentence to life imprisonment
Aug 16/17, 1915 - A lynch mob captures Frank and kills him
FOUND IN: US(Ap,MW,SE,So)
REFERENCES (17 citations):
Laws F20, "Mary Phagan"
Eddy-BalladsAndSongsFromOhio 110, "Leo Frank and Mary Phagan" (1 text)
Gardner/Chickering-BalladsAndSongsOfSouthernMichigan 144, "Little Mary Phagan" (1 text)
McNeil-SouthernFolkBalladsVol2, pp. 71-75, "Little Mary Fagan"; "Little Mary Phagan" (2 texts)
Brown/Belden/Hudson-FrankCBrownCollectionNCFolklore2 253, "Little Mary Phagan" (4 texts plus 1 excerpt and mention of 1 more; Laws lists only three of these as this song, but this appears to be an error)
Brown/Schinhan-FrankCBrownCollectionNCFolklore4 253, "Little Mary Phagan" (1 excerpt, 1 tune)
Killion/Waller-ATreasuryOfGeorgiaFolklore, p. 260, "Little Mary Fagan" (1 fragment)
Morris-FolksongsOfFlorida, #37, "Little Mary Phagan" (2 texts)
Arnold-FolkSongsofAlabama. pp. 74-75, "Little Mary Fagan" (1 text, 1 tune)
Cambiaire-EastTennesseeWestVirginiaMountainBallads, p. 104, "Little Mary Fagan" (1 text)
Rosenbaum-FolkVisionsAndVoices, p. 231, "Little Mary Phagan" (1 fragment, 1 tune)
Cohen-AmericanFolkSongsARegionalEncyclopedia1, p. 314, "Little Mary Phagan" (1 text)
Burt-AmericanMurderBallads, pp. 61-64, "(Mary Phagan)" (1 text plus 2 long excerpts, 1 tune; one of these versions blames Conley rather than Frank, and is probably a rewrite); also an isolated couplet on p. 123
DT 774, MARYFAG
ADDITIONAL: Leonard Dinnerstein, _The Leo Frank Case_, second edition, University of Georgia Press, 1987, pp. 166-168, "The Ballad of Mary Phagan" (1 text, from JAFL)
Robert Seitz Frey and Nancy C. Thomson, _The Silent and the Damned: The Murder of Mary Phagan and the Lynching of Leo Frank_), 1988; Cooper Square, 2002, pp. 139-141( 3 texts, one from Burt-AmericanMurderBallads, one from Pearl Flake of Atlanta, and one unidentified; there is also a separate Mary Phagan poem)
Kristina Horton, _Martyr of Loray Mill: Ella May and the 1929 Textile Workers' Strike in Gastonia, North Carolina_, McFarland & Company, 2015, pp. 189-190, "Little Mary Phagan" (1 text, from Brown, included because it is the basis of "The Mill Mother's Lament")
Roud #696
RECORDINGS:
Rosa Lee Carson, "Little Mary Phagan" (OKeh 40446, 1925)
Vernon Dalhart, "Little Mary Phagan" (Columbia 15031-D [as Al Craver], 1925) (Romeo 332, 1927; rec. 1925)
Charlie Oaks, "Little Mary Phagan" (Vocalion 15099, 1925; Vocalion 5069, c. 1927)
CROSS-REFERENCES:
cf. "The Death of Roy Rickey" (tune)
SAME TUNE:
The Death of Roy Rickey (File: ThBa163)
The Mill Mother's Lament (File: GAFP250)
NOTES [15043 words]: [This] story was later made into a movie, "They Won't Forget," in which Lana Turner made her debut as Mary. - PJS
I've seen it called "They Don't Forget," though Internet sources seem to indicate that Paul is correct. The stills on the web don't make Turner a very good likeness of Mary Phagan, if it matters. (McNeil, p. 74, says that Turner was "totally inappropriate" in the role, though he gives no explanation. Hollywood would hardly care that the two didn't look alike.)
Although probably the best-known, "They Won't Forget" was in fact only one of many movies inspired by the case, beginning with a contemporary documentary of sorts, "Leo M. Frank and Governor Slaton," which included actual footage of Leo Frank in prison (it could hardly be called an "interview" in the days of silent film!) but largely ignored the actual case. The Turner movie was based on Ward Green's novel Death in the Deep South, which was not intended to be factually accurate. There was also a later TV movie. Books about the tragedy are commonplace, and continue to be published to this day. I have four, including three which as best I can tell are the most recent serious treatments of the subject still in print; for the list, see the Bibliography.
In addition to these three books, Dinnerstein's bibliography cites at least five other books devoted exclusively to the Leo Frank case, and numerous articles. WebFlag lists 13 books about the case, but four are novels and one appears to be more a sociological study than a work about the case itself.
As I re-read and update this entry about fifteen years after I first wrote it, I am amazed by the number of slips of the pen (word processor?). I can only say that I wrote it in real anger and shame at the American judicial system. MacLean, p. 160, suggests that the whole thing was influenced by the sort of reactionary populism which was not widely recognized when she wrote but that came to full flower in the election of 2016.... I still believe that the execution of Leo Frank could only be the result of vigilante justice fueled by what we now call "fake news," but I have tried to improve the account somewhat. Still, there will surely be traces of my earlier passion.
I wasn't the only one making mistakes. Laws, for what reason I do not know (it may be just one of the many typos in his work), gives the date of Mary Phagan's death as April 5, and this was used in earlier editions of the Index. Gardner/Chickering-BalladsAndSongsOfSouthernMichigan incorrectly give it as August 5. McNeil reports April 27, 1913 as the date of Mary Phagan's death; I think this is meant to refer to the date on which the body was discovered. A New York Times story (August 18, 1915) quoted by Brown gives a date of April 26. Mary's tombstone says April 26. This is also the date cited in Dinnerstein and Oney. F/T, p. 1, states that the body was found at 3:20 a.m. on April 27; Dinnerstein, p. 1, gives the time as 3:00 a.m., and Oney, p. 18, says it was found at 3:30 a.m.
The date of the murder isn't the only thing that is uncertain. For example, Laws lists the date of the commutation of Leo Frank's sentence as June 22, but I made a note (from what source, sadly, I do not recall) that it took place in August. The June date is correct; Governor Slaton was out of office by August.
There seems to have been confusion over the date of Frank's murder as well.
Even the date of Mary Phagan's birth is slightly uncertain, though this is not a case of modern misprints; it's an early error. Her tombstone says she was born June 1, 1900 (a photo is found in F/T following p. 68), but her mother implied a date in 1899 (F/T, p. 6). The best guess is that she was not quite fourteen at the time of her death. Her family's history is not entirely clear in the sources; her biological father was dead at the time of her murder, but F/T, p. 6, says her father was named John and died in 1911, while Oney, p. 4, says that her father William Joshua Phagan died in 1899 before Mary was born. F/T and Oney also disagree on her birthplace; F/T says Marietta, Georgia, which is where she grew up; Oney claims Alabama, saying the family moved to Marietta in 1900, then to Atlanta in 1907. WebFlag agrees with Oney.
What is certain is that Mary Phagan worked in the National Pencil Factory in Atlanta in 1913. If you're wondering what a thirteen-year-old was doing working in a pencil factory, Atlanta at this time was a very poor area, little more than a big sweatshop; child labor was considered normal (Dinnerstein, p. 8) though it was considered dangerous to let girls work in such places among grown men. But with her father dead, Mary had to work in the factory to make ends meet. Later, Mrs. Frances Phagan remarried -- to John W. Coleman in 1912, according to Oney, p. 4 -- but Mary chose to keep working in the factory; she reportedly enjoyed the job; Dinnerstein, p. 11.
Oney, p. 5, says that Mary had quit school at the age of ten, and her job at National Pencil was already her third. On p. 6, he says that Georgia was the only state that still allowed ten-year-olds to work in is factories. (The first attempt at a national child labor law was passed in 1916; it was not until Franklin Roosevelt's administration that such a law passed court scrutiny. Dinnerstein, p. 7, states that in Georgia at this time, even children under ten often worked illegally in the factories, which were never inspected; some of these children earned only 22 cents a week -- by this measure, Mary Phagan was actually relatively well off. At least she seems not to have been one of the more than 50% of Atlanta children who, according to Dinnerstein, p. 8, suffered malnutrition or work-related illnesses.)
Atlanta at this time was a very rough place; in 1905, it is claimed that a fifth of the population had some sort of run-in with the police. Crime was still extremely widespread at the time of the Frank Dupre case nearly a decade later (see the notes to "Dupree" [Laws I11]). The poverty made the city a powderkeg; Dinnerstein, p. 9, thinks this explains the public hysteria caused by the Phagan case.
Another thing is certain: while in the factory, Mary was murdered.
She wasn't even supposed to be there. April 26 was Confederate Memorial Day, so the factory was closed down and only a few people were in the building (F/T, pp. 4-5). As the song says, she went to the factory to collect her pay.
The body was discovered by night watchman Newt Lee in the early hours of Sunday, April 27, 1913 (Dinnerstein, p. 1). Lee had apparently gone down to the basement to use the "colored" toilet (F/T, p. 32 -- remember, this was Atlanta in 1913, so the facilities were thoroughly segregated. Oney, p. 21, says that Lee was born a slave -- whatever that tells us).
Lee called the police, who found the corpse of a girl concealed by sawdust and grime so thick that the police could not immediately determine her race, her mouth filled with dirt, her skin covered with cinders (they probably stuck to her as the murderer choked her with her face to the ground), her cheeks slashed, her fingers out of joint, her head bashed in, blood coming from mouth and ears, with a 3/4 inch cord and a strip of her underclothes tied around her neck, and her clothing in shreds (F/T, p. 2; Dinnerstein, p. 2, Oney, p. 18; on p. 391, Oney says that her clothing was *cut* with knife or scissors, to expose body parts -- seemingly evidence of sexual fetishism). She clearly had fought her murderer, but equally clearly, the murderer had been a brute, and probably a very strong one. The issue in the Mary Phagan case is not whether the murderer deserved to be hung -- clearly the human race would have been better off without him (and I say that as an opponent of the death penalty). The issue is, who was the beast?
The police investigation was inept, leaving much physical evidence unexamined. The police expended a lot of energy, searching subjects' homes and checking time clock records (F/T, pp. 10-11), but showed little intelligence. (F/T, p. 11, points out the interesting fact that the Atlanta police chief would in later years be twice demoted for incompetence! -- James L. Beavers, had been appointed in 1911 and gone on a crusade against brothels, but was inept enough that he was deposed and resigned in 1915, then reappointed in 1917, ran for mayor in 1922 and didn't even make it to the second round, and was deposed again in 1923, only to be restored yet again 1925-1932; Garrett, pp. 574, 657, 699, 787, 794-795.)
The coroner does not seem to have examined the body fully enough to rule on whether the murderer had engaged in anal rape, checking only for vaginal intercourse -- and even there, the results would prove less than definitive.
Mary's purse, described as a mesh handbag, had been taken and was never found (F/T, p. 3) -- a fact which is significant in considering the motive for the murder. Jim Conley would accuse Leo Frank of taking it (Oney, p. 257), but it never surfaced in Frank's possessions. Dinnerstein, pp. 169-171, mentions that a prisoner later claimed that Jim Conley gave him a purse which matched the description of Mary's -- but the account was said by the newspapers to have been discredited, though no explanation was given as to why.
Whoever got it, the purse can't have held much; Mary was paid a few pennies an hour to put erasers in their metal holders (F/T, p. 5, says she earned 12 cents an hour; Oney, p. 5, claims 10 cents an hour). Other employees had been paid the Friday before the holiday, but because the eraser room had been temporarily shut down due to a supply problem, Mary had not been in the plant at the time and did not know about this. As a result, she came in a day late to pick up her $1.20 (F/T, p. 5. Ordinarily, she worked 55 hours a week, but this week she had worked only eight or ten hours; Oney, p. 9). Manager Leo Frank was in the office to compile the weekly production report, so she collected her pay from him (he reportedly did not know who she was, according to Oney, p. 27 -- not too surprising, since the factory employed 170 people, mostly teenage girls, according to Oney, p. 16. In the trial, it was shown that he rarely talked to his workers; Oney, p. 215). No one admitted to seeing her again until her body was found (F/T, p. 6).
It was obviously murder, and a brutal one; some suspected rape as well. (McNeil-SouthernFolkBalladsVol2,, p. 72, says unequivocally that she had been raped, but it must be repeated, this is unproved.) The claim of rape was apparently was based on the testimony of janitor Conley (Tennessean, p. 3), and also on the fact that there was blood around her genitals (Oney, p. 19), though the limited physical evidence supplied by examiners would prove inconclusive. The room in which she was found was almost inaccessible; the only ways to reach it were by an elevator, a few shafts from the upper floors which could not be climbed from below, or a plank ladder which led to a long, narrow, minimally lighted corridor (Oney, p. 19). It sounds as if, had luck been different, Mary's body might not have been found for days.
Remember that elevator, because Jim Conley later claimed that it was by this means that he and Leo Frank had carried Mary's body to the basement. Despite this, there seems to be no evidence that her body was ever in the elevator cage.
Support for the theory of rape probably came from the descriptions of Mary Phagan; according to Tennessean, p. 6, she was "a beautiful girl -- four feet, eight inches tall and weighing about 105 pounds. She had long, reddish-blond hair...." F/T, p. 6, says she was considered the prettiest girl in her neighborhood, and Oney describes her on p. 3 as follows: "Eyes blue as cornflowers, cheeks high-boned and rosy, smile beguiling as honeysuckle, figure busty (later, everyone acknowledged that 'she was exceedingly well-developed for her age'), she had undoubtedly already tortured many a boy." This largely matches the description of Mary given by a friend at the Leo Frank trial; Oney, p. 213.
(Two men who sniffed after her actually became suspects in the case, according to Oney: One was a 24-year-old named Arthur Mullinax who supposedly had been attracted to her at a Baptist Christmas pageant in which she played Snow White; Oney, p. 33. There seems to be some confusion about this pageant; F/T, p. 7, says Phagan played "Sleeping Beauty" at the First Christian Church, which doesn't sound like a Baptist congregation. In any case, the police questioned Mullinax but eventually let him go; a sighting of him in suspicious circumstances was a case of mistaken identity; Oney, p. 62. Mary also apparently attracted the attention of James Milton Gantt, a 26-year-old former National Pencil employee; Oney, p. 47. He too came under suspicion, but had an alibi; Oney, p. 62.)
Dinnerstein, p. 12, has a photo which does make her quite attractive, though her hair looks rather dark and I would have guessed her to be older than thirteen. It appears that the photos from this set are the only ones of her available, at least as a teenager; the cover of F/T, F/T, p. 26, Golden, before p. 177, and Oney, after p. 278, all show pictures of her in what appears to be the same clothing, though the photos themselves are not quite identical.
People also described her as a "model girl" and said that everyone liked her (F/T, p, 6), though Oney, p. 3, sees a more rebellious streak in her letters, which talk about escaping her circumstances. But she had never done anything that seriously troubled her family. When she didn't come home on time, her mother and stepfather were frantic; when word eventually came (long delayed because the body had been hard to identify and because the Colemans had no phone, so a neighbor had to carry word), Mrs. Coleman literally collapsed over the fate of her daughter (Oney, pp. 23-24). Mary had not until then even been considered old enough to go dating.
(She may have been up to something on the side, though; MacLean, p. 159. Two medical examiners eventually looked at her body. One thought that she had been sexually abused but found no sperm in her vagina; Oney, p. 234. The other found that her hymen was not intact but, because there was little blood there, did not think it had been broken in the assault -- perhaps evidence that she had not been raped; Oney, p. 237. She definitely was not pregnant; F/T, p. 37.)
The police abused and detained watchman Lee (Dinnerstein, p. 14; Garrett, p. 620, mentions the custody but not the abuse), and brought to light some inconsistencies in his testimony (F/T, p. 14) as well as finding a suspiciously stained (bloody?) shirt in his trash (Oney, p. 65). He had, however, punched his time clock pretty regularly on the night of the murder (Oney, p. 30), and they finally concluded he was innocent. (Unlike the papers, which at one point declared him unequivocally guilty.) The authorities also used strongarm tactics on fired former bookkeeper Gantt, again without results (F/T, p. 8).
The police had been so incompetent that plant manager Leo Max Frank called in the Pinkertons (Dinnerstein, p. 4). Oney, p. 20, thinks the first men on the scene did a relatively good job, but even he allows on p. 30 that the detectives messed up the trail over which Mary had been dragged, as well as destroying physical evidence when they took the elevator to the basement. In light of their performance, Oney, p. 54, makes the interesting observation that Atlanta's policemen at this time had only a week's training before being given a badge, and the department had no fingerprint expert. This is important, because Dinnerstein, p. 4, says that there were fingerprints on Mary's clothes, and probably in the vicinity, some bloody, but no examination was made of them, even though Frank himself asked if they had been looked at.
Hiring the Pinkertons may have been a mistake; Oney, p. 62, observes that the Pinkertons at this time were often hired to whitewash businesses, so hiring them was seen as a sign of some sort of guilt. They often supplied muscle that was used against ordinary people. In any case, they seem to have turned against Frank under pressure of public opinion; Dinnerstein, p. 20. Plus they weren't much help; F/T, p. 28, says that an Atlanta ordinance forced them into subservience to the police.
Nothing much happened for a week after the murder: Investigators did haul in seven suspects -- but couldn't offer any real evidence (Dinnerstein, p. 15). Meanwhile, tensions in the community were increasing.
Because of the lack of results, Atlanta Solicitor-General H. M. Dorsey stepped in on May 5 (Oney, p. 92). "Solicitor-General" was the then-current term for what we would now call "District Attorney"; his main duty was managing prosecutions. Dorsey certainly brought more energy to the case, but it was hardly his job. (Dinnerstein, p. 154, calls his action "conduct unbecoming a state official.")
Nor was Dorsey the last to intervene -- a coalition including one of the newspapers would hire the William Burns detective agency (Dinnerstein, p. 16). Burns was probably the most famous sleuth of the time (Oney, pp. 102-105), but though he sent a subordinate, he would not personally get involved until things had turned ugly.
So by early May there were four competing organizations investigating the Phagan case (Dinnerstein, p. 19): The Atlanta police, Dorsey's office, the Pinkertons, and Burns and Company. It was more a competition than anything else -- the investigators were actually spying on each other (Oney, p. 108). Sadly, this caused Burns -- the one competent investigator -- to pull out temporarily (Dinnerstein, p. 20; Oney, p. 112). By the time he returned, public opinion was too set for him to do much good.
While police were striking out with their original suspects, Leo Frank, the manager of the National Pencil factory, had come under suspicion. Oney, p. 24, describes Atlanta Detective John Black as a suspicious sort; he seems to have been set off by the fact that it was some hours before anyone answered the phone at the home where Leo and Lucille Frank lived with Lucille's parents. It didn't help that, when detectives came to the home, Frank appeared to be very agitated (Oney, p. 25). Frank's explanation -- which makes sense to me -- is that, when the police came to his door, no one was willing to say what was going on! (Oney, p. 26).
Later, the police put Newt Lee (whom they still suspected) and Frank in a room together to try to shake something loose, but with no results (Oney, p. 69). This somehow caused investigators to suspect Frank even more (Oney, p. 70).
By that time, the papers had roused tensions to a fever pitch. Unfortunately, one of the local papers was a Hearst organ -- and one that had only been part of the chain for a year, so it needed beefing up (Oney, p. 40). Crime stories were a favorite (Oney, p. 41). The Atlanta Georgian devoted over 17,000 column inches to the Phagan case in the first five months after the murder, forcing the other papers to give it attention as well (Dinnerstein, p. 13). The Georgian did not break the story; a sensationalist writer named Britt Craig induced the Atlanta Constitution to publish an extra (Oney, pp. 22-23).
But that was just the opening salvo. The papers competed in lurid coverage (including, e.g., a faked photo of Mary's head on another body; Oney, p. 35); naturally public opinion was inflamed! On the Monday after the murders, the Georgian printed at least eight extras, perhaps more (Oney, p. 37). The Georgian was not actually anti-Frank (according to Dinnerstein, pp. 29-31, only the Atlanta Constitution, which was closest to the police department, accepted police statements without question), but it hardly mattered. The Mayor of Atlanta, under pressure, proceeded to order the police to find the murderer or lose their jobs (Dinnerstein, p. 16). After all, they already had 13 unsolved murders on their books (F/T, p. 27) and a reputation for corruption (Oney, p. 54) -- though they also had a crusading reputation (Oney, p. 59).
Later on, another paper, Tom Watson's Jeffersonian, would prove even more troublesome. Thomas E. Watson (for whom see the notes to "Thomas E. Watson") called himself a populist, which in practice means that he combined the worst aspects of William Jennings Bryan populism with bigotry, appealing to base prejudices against foreigners, Jews, and Yankees, including the non-Georgian detective Williams Burns (Oney, p. 397. Dinnerstein, p. 95, says that -- in his early days at least -- Watson was not anti-Black. But that changed as he went from politician to publisher -- he even went so far as to rejoin the Georgia Democratic party, which at that time was still the party of racism and reactionary opinion).
Watson had been the populist vice-presidential nominee in 1896 -- producing a very strange situation, since William Jennings Bryan ended up being nominated for President by both the Democrats and the Populists, but with different vice presidential nominees. The Democrats chose Arthur Sewell, the Populists Watson. (That was the last time -- the only time, really -- that a presidential candidate had two significant vice presidential candidates associated with him.) This had come about because the Populists had wanted to support Bryan but did not want to merge their party with the Democrats (PresElections, p. 1812). They supported Bryan to promote free silver, but nominated Watson for vice president to maintain their separate organization.
According to PresElections, p. 1874, the populists were pretty well skunked in the popular vote -- William McKinley earned 7.1 million votes, Bryan with Sewell (or no specified vice president) 6.5 million, the Populist ticket only 222,000. In Georgia, Watson earned only 440 votes, to 94,672 for Bryan and Sewell. Yet, of the 176 electoral votes for Bryan that year, only 149 voted for Sewell, giving Watson 27 electoral votes. It was one of the strongest electoral college showings ever by a third party vice presidential candidate, and the high point of Watson's political career. Watson was the populist presidential candidate in 1904, but went nowhere in that election; the Populist party was dying.
Watson probably didn't help his future prospects in the 1896 campaign; PresElections, p. 1821, describes how he turned "angry and vituperative" when the regular Democrats hadn't paid more attention to him. In effect, he became the predecessor of angry conservative talk radio hosts -- and, arguably, of President Donald Trump.
Since his days on the national stage, Watson had turned into a popularity-grubbing nativist whose message was largely about hate; see Oney, p. 8, and his entry in the Dictionary of American Biography. Watson argued (obviously falsely) that there was no poverty in the early United States (Hofstadter, p. 62n.), but "We have become the world's melting pot. The scum of creation has been dumped upon us.... What brought these Goths and Vandals to our shores? The manufacturers are mainly to blame" (Hofstadter, pp. 82-83; on p. 81, he comments on Watson's behavior in the Frank case). Dinnerstein, p. 119, says that he called Frank a "jewpervert."
As the above shows, Watson had a way with words -- and his way was to flamingly condemn anything that his uneducated, poor, parochial readers might dislike. As best I can tell, the only thing he had in common with the broad-minded Thomas Jefferson is that both believed in an agrarian society.
The time of the murder was never firmly established (F/T, p. 37). The prosecution's doctor would estimate that she was killed around the time she was given her pay (Dinnerstein, p. 3). However, the forensics of the time had very little to go on -- the examiner's only evidence was the state of digestion of the contents of her stomach, which led him to estimate that she had eaten within an hour of the time she was killed. This worked out to a time between 12:00 and 12:15, which fit the state's case against Leo Frank; Oney, pp. 233-234. But while this might have been the most likely time, the defense brought in an expert who argued that the death might have occurred much later (Oney, p. 262) -- energetic activity could slow digestion, and even if you ignored being murdered, Mary had a fairly busy itinerary on the last day of her life.
The whole chronology is difficult (the following comes from Dinnerstein, pp. 48-49). Two employees said they came in to be paid around 11:45; Jim Conley said they came in around 1:00. Conley said that Mary Phagan had reached the factory before Monteen Stover. Stover testified that she reached Frank's office at 12:05, failed to see him in his office (he may have been hidden behind an inner door, assuming her account is accurate), and left at 12:10. The conductor of the trolley Mary rode to work said she had gotten off at 12:10 at a point about three minutes' walk from her work. Frank was seen at home (where he had lunch) between 1:00 and 1:30. Conley said Frank was at the factory at 1:30. And, as noted, the doctor claimed Mary was dead by 12:15. Obviously these times cannot all be reconciled, and the primary contradictions are between Conley, Stover, and the doctor who estimated the time of death -- all prosecution witnesses.
Quite a few people apparently visited the factory on April 26 (F/T, pp. 11-12). But it was alleged that at the time of the murder (based on the prosecution's timeline, of course) only two men were in the factory -- manager Leo Frank and (Black) janitor Jim Conley. (Frank's stenographer and office boy had both left around noon, shortly before Mary came to draw her pay; Oney, p. 29). The claim that no one else was there was extravagant -- the building was not ordinarily locked (F/T, p. 32), and Newt Lee, during the trial, would state that "anyone" could enter; Oney, p. 202. Plus the building was huge -- four stories high, and it occupied a whole city block. Oney, p. 9, reports that it was big enough to produce an average of 4.374 gross of pencils per week, or about 630,000. And the pencils weren't even all identical; Oney, p. 273, quotes a staff member as saying they made dozens of different kinds of pencil, which meant that it wasn't just one continuous assembly line; there were several separate production facilities. The obvious conclusion is that a sufficiently determined person could enter the building, and hide for an extended period if he so desired.
Still, the evidence indicates that Leo Frank was apparently the last person, other than the murderer, to see Mary alive, when he gave her her pay (Dinnerstein, p. 3). He said he heard no signs of a row during his time in his office. This even though a stain, which was said to be a pool of blood, was found in the "metal room" near Frank's office (Dinnerstein, p. 5). Oney, p. 46, says witnesses thought it was new, and that an attempt had been made to hide it. Apparently, though, the only "proof" that the fluid was blood was the fact that it did not dissolve in alcohol. (Oney, p. 47, thinks the blood was Mary's, but it appears no valid testing was done.) Hair was also found there, and one of the other workers in the metal room was sure it was Mary's.
(The claim that it was Phagan's blood and hair turned out to be extremely weak; staff at the factory said that there was often blood there because saws were in use; F/T, p. 35. Plus it was on the path to the first aid station, so people sometimes came in bleeding; Oney, p. 231. In any case, Dinnerstein, p. 234, says that the stain was eventually demonstrated not to be blood. Also, a girl who had worked there with Mary said that the floor of the room often was spotted with paint and other fluids, and that girls sometimes combed out their hair there -- and that one of those girls had hair much like Mary's; Oney, p. 216. The state biologist would later declare unequivocally that the hair was not Mary's; Dinnerstein, pp. 84-85.)
Given Monteen Stover's testimony that Frank was not in his office around the alleged time of the murder (Dinnerstein, pp. 37-38), Frank was arrested on suspicion of murder on April 29 (F/T, pp. 11-12; Oney, p. 60). He would later be interrogated harshly without his lawyer being present. (In the light of what followed, we have to note that Frank was Jewish and came from New York; Phagan of course was a southern girl.)
Since her purse was missing, it was evident that she had been robbed as well as murdered. Frank, however earned a salary of $150 per month (F/T, p. 37), which was at least five times Mary's income, and no one seems ever to have alleged that his pay was inadequate to his needs. Even if his salary *hadn't* been enough, what are the odds that he would have cared about Mary's $1.20?
No physical evidence was ever found to implicate Frank. The only real evidence against Frank seems to have been his nervousness when informed of the murder and his vigorous attempts to blame someone else (Oney, p. 63. To which I say, What would *you* do if you were falsely charged with murder?)
A number of witnesses came forward to attack Frank's sexual morality. A young man named George Epps said Mary Phagan was afraid of him (Dinnerstein, p. 17). This seems dubious -- given the labor shortage in Atlanta, she could have found other work had she been suffering harassment. Plus the strong evidence is that Leo Frank did not know who she was. Topping it all off -- would she have gone to collect her pay on that day, when no one else was around, if she had been afraid of him? If she were really afraid, she would surely have gone to the factory only when there were witnesses around!
Accounts differed about whether Frank hassled other female employees (and, naturally, when one of them made charges against him, it got bigger headlines in the papers than when someone denied it; Dinnerstein, pp. 30-31). One "rooming house" owner claimed that Frank had tried to secure a room for part of a day (Dinnerstein, pp. 17-18), though an employee, despite pressure from the police, declared unequivocally that this was not so (Dinnerstein, p. 28). There were rumors, seemingly unsubstantiated, of paedophilia or other "perversions" (Dinnerstein, p. 19).
I would add that Frank had married as recently as 1910 (Dinnerstein, p. 6; F/T, p. 20). His wife was still only 25, described as pretty if plump (Oney, p. 81, though the photo he prints don't make her appear very attractive), and she was said to be quite endearing. One would think that Frank would still have been fairly happy with his wife, and their letters seem to have been very loving. In addition, his wife frequently visited Frank at work, so he could hardly use the factory for lecherous liaisons (F/T, p. 41; Oney, pp. 269, 271, says that several reliable witnesses reported that these visits were often on Saturdays, when Frank's alleged trysts with other girls took place).
In light of the extensive force used in Phagan's murder, it is worth noting that Frank was skinny and rather frail and probably weighed no more than 132 pounds (F/T, p. 20; Oney, p. 10, says he was five feet six inches and weighed 120 pounds. To be sure, Dinnerstein, p. 136, says he lost 60 points in prison, which is obviously impossible if he started at 120 or even 132. I wonder if "60 pounds" wasn't an error of hearing, at some point, for 16 pounds, which makes more sense and would also account roughly for the difference between F/T's and Oney's numbers). It is likely that he was hardly bigger than Mary herself (F/T, p. 35). The adjective "birdlike" could almost have been invented for him; in his photos, his head seems bigger than all the rest of him. He hardly seemed strong enough to be able to apply that much force. In addition, a few days after the murder, he showed the detectives that his body had none of the cuts and bruises that would have been expected had he been in a fight (Oney, p. 51).
We might note in addition that he was a Reform Jew (Oney, p. 597); he was clean-shaven and had attended Cornell (Oney has several photos of him in college). His subject was mechanical engineering (Dinnerstein, p. 5).
Police hauled in a servant of the Franks, and sweated some comments out of her that vaguely supported their theory of the case (Oney, pp. 162-165). Once released, she declared her entire affidavit false (Dinnerstein, pp. 26-27). Given the circumstances, her statements against Frank are clearly unreliable; she had been kept in prison without charge or warrant, and police apparently gave her the impression she would be hanged. In essence, it was a confession under torture.
The strange question is, why wasn't 27-year-old janitor Jim Conley, the other person who was known to have been in the National Pencil factory around the time of the murder, given this sort of attention? Although he was taken into custody a few days after the murder, Oney, p. 118, states that no one even took a statement from him for fifteen days after he was arrested! True, he was eventually questioned repeatedly, but apparently this was because the examiners expected him to lie because he was Black (Oney, pp. 140-141). Instead of the changes in his story being considered evidence against him, they were considered evidence that his final story was true! The prosecution was so intent on making a case against Frank that at one point they formally put Conley back on the street on the grounds that he wasn't even a material witness! (Oney, p. 173).
Dinnerstein, p. 19, and Oney, p. 94, hypothesize that prosecutor Dorsey needed to win a high-profile case for political reasons, which seems likely enough given his rather poor record in past cases; Oney argues on p. 100 that Dorsey intended to use pubic opinion to make it easier to win a conviction. But that still doesn't explain why he went after Frank rather than Conley.
Notes which proved to be in Conley's handwriting were found by Mary's body (Dinnerstein, p. 21; Garrett, p. 619 has the texts), yet at one time he claimed to be unable to write (F/T, p. 26; Oney, p. 119; Dinnerstein, p. 22, says that Frank himself had told police that Conley could write -- he had gotten notes from the man asking for loans). Later, having admitted literacy, Conley claimed Frank dictated the "murder notes," but outside analysts generally felt that Conley composed them to try to divert suspicion (they accuse someone of the murder, and they blame it on a Black -- but seemingly a tall dark-skinned Black; Conley had relatively light skin; WebFlag). Some of these claims were based on racist opinions about Black intelligence, but most were based on sober stylistic analysis. One would come from Conley's own lawyer (Oney, pp. 427-430, 483).
Conley was found trying to wash blood from his shirt (Oney, p. 118, though Conley claimed the stain was rust) -- but no one even subjected the blood to scientific examination! (Dinnerstein, p. 21). Conley was the one who charged Frank with having sexual liaisons at the factory, adding that Frank was physically abnormal -- but doctors testified that he was not (Oney, p. 276). When asked to re-enact the murder, Conley -- who had not been present when Mary's corpse was found or removed -- knew just where the body had lain (Oney, p. 142). To be sure, his final story said that he took Mary's body to the basement after Frank murdered her, so this did not prove his guilt. But it should be kept in mind.
Conley had an extensive record of petty crime (F/T, pp. 37-28, says he had been in prison seven or eight times in five years, and three times in the two years he had worked for National Pencil). His job performance had been bad enough that he had been demoted from elevator operator to sweeper (Oney, p. 119) -- it was said that the whole National Pencil Factory was filthy (MacLean, p. 168). There was eyewitness testimony that he was drinking in the period before the murder (Dinnerstein, pp. 21-22), and there were other reports of him being drunk on the job in the past (Oney, p. 119). We might also note that he lived with a woman without being married to her (Oney, p. 145, etc.)
Under questioning, Conley changed his story repeatedly (how often depends on how you count changes, but it was certainly three times, and F/T, p. 39, would make it five times). Each recital adding more incriminating statements against Frank (Dinnerstein, pp. 22-25), with his version on the witness stand being even more detailed than the statements to police. His final pre-trial story was that he only helped Frank dispose of the body, plus he was almost the only person to describe actual sexual liaisons in the National Pencil building. He never mentioned the fact (which came out later) that Mary's clothing had been carefully cut up.
The story he told had inconsistencies; the Georgian stated clearly, "Careful study of the negro's story has revealed absurdities in its structure which bring the deed to Conley's door" (Oney, p. 133).
Much of Conley's testimony was contradicted by reputable witnesses during the trial (F/T, pp. 40-41). A senior National Pencil employee testified that Conley often tried to borrow money from his co-workers (F/T, p. 42), which would provide motive for robbery. Two women he claimed to have seen on the day of the murder contradicted his timeline for the encounters (Oney, p. 283). An expert testified that Conley's claims for the time he needed to transport Mary's body was too short to be physically possible (Oney, p. 284).
Conley stated that he repeatedly stood watch while Frank engaged in his sexual activities (Oney, p. 239). Had this been true, of course, he would almost certainly have been seen doing it, and he never was.
We do not know if Mary was raped, but if rape it was, Conley seems the much more likely perpetrator; letters he wrote from prison are pornographic and utterly disrespectful to women (Oney, pp. 390-391. quotes a small sample. They make disgusting reading -- Dinnerstein alludes to them on p. 102, but, even in 1966, apparently didn't dare quote such filth).
Conley was also crude enough to have defecated down an elevator shaft in the factory on the day of the murder (F/T, p. 46) -- an important point, because it proved that part of his testimony about Frank was a lie. He claimed that he and Frank had used the elevator on that day in moving the body -- but if they had, it would have smashed the pile of excrement, which was untouched when the police arrived. This point -- the "shit in the shaft" -- was not brought out until later, but it is still evidence against him.
In summary, here we have a robber, a liar, and a drunk -- yet, somehow, he became the prosecution's star witness.
On the witness stand, Conley would confess to lying repeatedly, and whenever a question came up regarding a matter on which he had not given specific testimony, he "disremembered." Somehow, he managed to remember many details about Leo Frank's misdeeds, but he "disremembered" almost everything else (Oney, p. 249).
After the trial, a witness would come forward to say that he had tried to assault her (F/T, p. 67; Oney, p. 120, reports that he once shot at a lady friend and wounded a bystander).
Mary Phagan's mother Fannie Phagan Coleman eventually brought suit for $10,000 against National Pencil in what we would now call a Wrongful Death case (F/T, p. 74). I can't help but think she would have had a great case -- if Conley had been convicted of murder. I find it incomprehensible that National Pencil did nothing to control or fire this hooligan. It seems the question of why he wasn't fired came up at trial; an officer of the company apparently declared that "trustworthy" Blacks were hard to find (Oney, p. 275).
Eventually a Grand Jury wanted to indict Conley; in fact, a week before Frank's trial, they tried to bring a charge against Conley when they hadn't even been convened (Oney, p. 185). Solicitor Dorsey, who clearly wanted to convict Frank, browbeat them out of it (Dinnerstein, p. 29). At the trial, a Pinkerton agent testified that the police guided Conley to his story (F/T, p. 40). When the time came, Frank was placed on trial for murder, and Conley was primarily as a witness for the prosecution. The trial began on July 28, 1913 (Oney, p. 190).
Due to the high levels of poverty, and the extremely low levels of education, the population of Atlanta is said to have been very xenophobic. Lynchings were common. People even raised the suggestion of "blood libel" -- that Phagan's killing had been a ritual murder. Despite this, jury selection went surprisingly quickly, considering that four of the first seven groups of prospective jurors produces no jurors at all (Oney, p. 195). It took less than a day to form the jury.
The prosecution treated the case very seriously -- Dorsey and his staff evidently knew they had a weak case, so they worked jurors' emotions to the limit. The first witness called was Fannie Coleman, Mary Phagan's mother (Oney, p. 196). She of course had absolutely no evidence to bring against Leo Frank (in all likelihood she had never even seen him before!) -- but she broke down several times on the stand, including when her daughter's bloodstained clothes were brought in; it was a clear attempt to make the jurors desperately want revenge on the murderer. (I can't say I blame them. I would have wanted to avenge Mary, also. I'd just like to have gotten the man who murdered her rather than a scapegoat.)
In addition, the prosecution (plus his lawyer William Smith) had clearly gotten to Jim Conley, tidying him up and, based on his behavior on the witness stand, coaching him on how to present his story (Dinnerstein, pp. 40-44; Oney, pp. 188-189). In the court, he gave a dramatic -- though not very reasonable -- account of how Frank had had him dispose of Phagan's body. And the defense could not shake him (Dinnerstein, p. 45). Having failed, they made little attempt to point up the inconsistencies of his story.
Frank hired top-flight defense lawyers (Dinnerstein, p. 37; Oney, p. 191, notes that no fewer than eight attorneys were present for the defense). But they handled the case badly. F/T, p. 55, suggested that the lawyers simply didn't believe a Georgia jury would convict a white man on the testimony of a black man. Despite the mob baying for blood, they never requested a change of venue (Dinnerstein, p. 57), which was clearly necessary (in fact, the failure to request a change of venue was later used by the prosecution as support for the claim that the trial was fair; Oney, p. 493). Given the Georgia summer heat, it was sometimes necessary to open the court windows, allowing outside demonstrations to be heard (Oney, pp. 210-211). The judge never even cleared the court (F/T, p. 51), except for a brief time when he ordered the women out (Oney, p. 246), which turned the whole thing into a circus. I don't understand why the defense even wanted a jury trial; it cost Frank his life.
The defense did break down the testimony of the first investigators (Oney, p. 208), and of the lead detective (F/T, p. 33; Oney, pp. 218-220). They also largely demolished the testimony of George Epps and Helen Ferguson, young people who vaguely linked Frank to Mary (Oney, pp. 270-271, 273), and Oney, p. 238, seems to think they were ahead "on points," so to speak, when Conley came to the stand. But Conley was the key to the whole case -- the *only* witness or evidence linking Leo Frank to the murder of Mary Phagan -- and they did not break him down. They didn't even object when Conley testified to other misdeeds allegedly committed by Frank (Oney, p. 242. Presumably they thought they would be able to discredit these charges. To a great extent, they did -- but it didn't matter. The jurors got the message.)
When it came time to present a defense, the real disaster began. The defense lawyers had failed to penetrate Jim Conley in cross-examination, but they never presented a real alternative to Conley's claims. They surely could have gone after Conley (who, if Frank was innocent, was almost certainly the murderer). Instead, they spent most of their energy to paint Frank as a saint who would never have done such a thing.
The primary argument seemed to be that Frank had done nothing unusual on the day of the murder (Dinnerstein, p. 48). They did demonstrate the inconsistencies in the times of events as stated by the various witnesses, and showed that Frank's whereabouts were accounted for in most of the two hours around the time the murder was thought to have been committed (Dinnerstein, p. 49). Indeed, a stenographer testified that he had asked her to stay the entire period (Oney, p. 279), but she had other duties. But they made no real use of the limited forensic evidence available, and made no attempt to find more (F/T, p. 56).
And then there were the character witnesses. Under 1913 Georgia law, all witnesses had to be sworn in at the start of the trial. Oney, p. 192, notes that the defense wanted to delay submitting its witness list. Told they could not do so, but allowed additional time to compile the list, they huddled, then turned in the list. They proceeded to offer the names of many prominent Jews and alumni of Cornell, Frank's old college. "Plainly, this list of well over one hundred names was more than just a list -- it was a theory of the defense, one that carried with it the prospect that in rebuttal, the state would introduce witnesses to testify to Frank's bad reputation" (Oney, p. 192).
The main effect of these witnesses seems to have been simply to stretch out the proceedings and irritate all involved (F/T, p. 56). Plus they gave Dorsey the chance to ask all of them more questions about Frank's alleged perversions (e.g. Oney, p. 286). In all this, probably the only defense witnesses who really mattered were the outside accountants who testified that the work he did on the fatal Saturday would have required him to stay at his desk all day (Oney, pp. 277-279) -- he would have had no time for attempted seduction, rape, or murder.
Oney, p. 281, shows a typical example of how the character witnesses were treated. Dorsey took a defense witness who had done distinct damage to the prosecution case and kept asking him about homosexual acts by Frank. As the defense stated, no one could get a fair trial in those circumstances (Oney, p. 282). The judge often struck Dorsey's questions from the record, and the witnesses usually said that Frank didn't do any such thing anyway, but it didn't matter; the insinuation that he was some sort of pervert was kept before the jury's mind.
The whole trial took four weeks (Dinnerstein, p. 52). Dinnerstein's description makes the whole prosecution case little more than a smear campaign, and the accounts in F/T and Oney are only slightly more charitable to Dorsey. Golden, p. xiv, declares, "It is unlikely that anyone could be convicted in the America of the 1960s on the evidence and the testimony which convicted Leo Frank in 1913." Dorsey's tactics were so vile that at times it appeared the attorneys for the two sides would come to blows (Oney, p. 290).
At the end, Frank made a statement in his own defense; I assume that this was unsworn (a quirk of Georgia law allowed -- in effect, almost demanded -- the accused to speak, not under oath, but without help or guidance of counsel). He spent four hours in this, and declared it "the whole truth." His family was in tears afterward. (Garrett, pp. 623-624). But -- he was Jewish.
The outcome, in Dinnerstein's view, was inevitable; judge and lawyers had been presented with death threats, and possibly the jurors also (Dinnerstein, p. 60. F/T, p. xix, declare that "The jury were scared, the judge was scared, and the prosecutors were scared"). The prosecution spent three days theatrically summing up the case (Oney, p. 337), reminding the jury again and again that Frank was a Jew (Dinnerstein, p. 53). The defense called for a mistrial (Oney, p. 339), but was turned down. The judge spent mere minutes instructing the jury (Oney, pp. 339-340), and then, only an hour and a half after Dorsey finished shrieking "guilty! guilty! guilty!" like a demented fury as church bells tolled, the jury began to deliberate.
It took the jury only four hours to decide the case (Dinnerstein, p. 55); they reported only two ballots; (Oney, p. 340). To prevent riots, the court had (finally!) been cleared (F/T, pp. 52-53), so there were few people around when the court declared Frank guilty of first degree murder. (Frank would comment, "My God! Even the jury was influenced by mob law" -- Dinnerstein, p 56; Oney, p. 342). Not even Frank was allowed to be present when the verdict was announced, which, according to F/T, p. 53, should have been by itself grounds for a new trial. (The jurors needed to see the accused they were about to convict.) The next day, Frank was sentenced to hang, in a proceeding so secret that not even his wife was allowed to be present (Dinnerstein, p. 57). The execution was scheduled for October 10, 45 days after the sentencing date of August 26 (F/T, p. 54).
Despite the claim by F/T that the jury was scared of the mob, they seem to have been more playful than anything; they had become friends and made up nicknames for each other (F/T, p. 52). From what we know of their deliberations, not one seems to have been bothered by the possibility that they were committing judicial murder.
Clarence Feibelman, who knew Frank and was in high school at the time, reported later, "There was no possibility of him not being found guilty. There were mobs outside the courthouse. It was hot, it was the summertime. And the mobs outside were hollering, 'Kill the Jew!' and 'Lynch the Jew!' and all that sort of stuff. And I'd be on the streetcar and sometimes I'd get off and walk past there, and it was just harrowing to hear these people. It made your blood run cold" (Kuhn/Joye/West, p. 12)
When the verdict came down, it did much to arouse the nation's Jewish community. There were comparisons to the Dreyfus Affair in France, where a Jewish officer had been falsely convicted of treason on even flimsier evidence (Oney, p. 346; Chapter III of Dinnerstein is titled "An American Dreyfus"; Golden, p. xiv, mentions Dreyfus while mentioning the key difference that Dreyfus was not sentenced to death). In one sense, the outrage helped -- it brought in more money for Frank's legal defense (Frank's initial defense had cost about $50,000, according to Oney, p. 365, and he of course didn't have that sort of money). But it also caused the xenophobic Georgians to suspect some sort of Jewish conspiracy (Dinnerstein, p. 92). There was a widespread belief that anyone who supported Frank had been bribed. As a result, there was fear in the Jewish community that they would suffer if they seemed to be openly supporting him.
While the verdict convinced the mob, it did not convince Frank's bosses. National Pencil executives still consulted him on policy while in his prison cell (Oney, p. 349).
There was, of course, an appeal -- but the Georgia constitution didn't care about guilt or innocence, or tainted juries; the only grounds for appeal was an error in law or procedure (Dinnerstein, p. 77; F/T, p. 66, remarks that this was the effect of a constitutional amendment adopted in 1906. To put it another way, having bad lawyers was a hanging offense.)
There were good grounds for the appeal. Frank's lawyers listed 115 reasons why there should be a new trial (Oney, p. 349) -- though some of them should surely have been brought up in the first trial. The most dramatic of the reasons: Two jurors had apparently declared Frank guilty in advance (Oney, p. 350). The judge who tried the original case declared in refusing the motion for a mistrial, "I have thought more about this case than any other I have tried. I am not certain of the man's guilt. With all the thought I have put on this case, I am not thoroughly convinced that Frank is guilty or innocent. The jury was convinced. There is no room to doubt that. I feel that it is my duty to order that the motion for a new trial be overruled" (Dinnerstein, p. 79; Oney, p. 364, points out that the jury's verdict, once reached, bound the judge -- he could not overrule them unless there were procedural errors, and the defense should have pointed those out earlier). The flip side is, Judge Roan ruled that his uncertainty should be included in the appeal request. In other words, he felt bound by the law but probably hoped Frank would get a new trial. The Atlanta Journal also called for a new trial (Garrett, p. 625).
F/T, to be sure, have another hypothesis: based on a book published in 1959, they think Judge Roan knew (based on an account from Conley's lawyer) that Conley was guilty. But, rather than inflame public opinion, he denied the motion for a new trial, hoping the furor would die down and that the appeal would clear Frank (F/T, p. 58-59). Roan's brother said something similar about his brother's motives before the pardon commission (Oney, p. 481). I can't see how this is in any way morally superior to the other.
(F/T say on page 74 that Judge Roan died in March 1915 of a blood clot; Oney, followed by Oney, says the cause of death was cancer. There was speculation that the pressure of the trial contributed to his demise. On his deathbed, he wrote a letter appealing for clemency for Frank; Oney, p. 469.)
That left the Georgia Supreme Court. They listened to arguments from the lawyers for four hours, then decided 4-2 not to allow a new trial (Dinnerstein, p. 81). Oney, pp. 368-370, notes that this appeal opened very little new ground, so perhaps it is no surprise that nothing came of it -- though the judges needed 142 pages to say so. But it appears that their ruling boiled down to "it's up to the trial judge." Judge Roan, as we have seen, thought it was up to the Supreme Court. Frank's first appeal was denied because both courts said, "You go first." As a result, a new execution date was set, by a new judge -- April 17, 1914, Frank's thirtieth birthday (Oney, p. 377).
In the period after the first appeal, much new evidence came out. The parties finally consulted a scientist, who said that hairs alleged to have been torn from Mary's head during the murder were not hers (Dinnerstein, pp. 84); those hairs were important to the prosecution's case, but the scientific evidence was suppressed by prosecutor Dorsey (Oney, p. 371), who declared the testimony of his witnesses to be worth more than mere scientific fact (Dinnerstein, p. 85). This was clear misconduct by the prosecution (Oney, p. 370). There was even a witness who said the blood in the "metal room" was probably his.
The "murder notes" that Conley had written and left by the body were shown to have been written on old stationary, stored in the factory basement, not on the current stationary Frank would have had in his office (Dinnerstein, p. 87; Oney, pp. 379-380). Yet Conley claimed that he had written them in Frank's office. The prosecution argued that Frank had dictated the notes to Conley, but there was strong evidence that Frank could not have used the language they contained (Dinnerstein, p. 90); they used words which strongly implied that Conley -- who certainly did the actual writing -- also composed them. This issue would come up again, even more forcefully.
In addition, a number of witnesses changed their story (Dinnerstein, pp. 86-87), with most though not all of them saying that their previous evidence against Frank was false. One of these, George Epps, had been one of the keys to Dorsey's reconstruction of events (Oney, pp, 197-198), and he now accused the police of telling him what to say on the stand (Oney, p. 373). At least seven girls who had testified to Frank's "bad character" changed their accounts, most way that they had been coached (Oney, p. 389, who adds that one testified as she died because she didn't know what "lasciviousness" meant). There were reports of the police having bribed or threatened other witnesses (F/T, pp. 66-67; Oney, p. 372).
Two separate sources, in this period, gave evidence that Frank had not committed the murder (Dinnerstein, pp. 102-105). One was a woman who said Conley had confessed to it while proposing (! -- Oney, p. 395), the other was hearsay testimony from a minister who overheard a congregant saying that he, not Frank, had committed the murder (Oney, p. 396). The minister, C. B. Ragsdale, said he didn't know who had made the comments -- but it obviously wasn't Frank! I suspect both would have been inadmissible in court; in any case, both ended up being retracted. The girlfriend later denied receiving Conley's letters and promises, perhaps under pressure from the prosecutors; the minister also retracted his testimony, claiming that he had been bribed (Oney, p. 398). This ruined one possible grounds for appeal and of course made Frank look bad (F/T, p. 69). The minister involved eventually resigned his pastorate -- after all, he had both sides mad at him!
Other witnesses who changed their stories were threatened by Dorsey with perjury charges (Oney, p. 394). In the end, most of those who recanted would re-recant (Oney, pp. 411-413). None of it mattered anyway; under Georgia law, perjured testimony stood unless the witness were convicted of perjury (Oney, p. 418). In other words, here again, Georgia law did not consider innocence to be grounds for a new trial.
During this period, the famed detective Williams Burns finally took a personal role in the case, showing that Mary's clothing had been cut up in a sexually explicit way, implying "deviancy" on the part of the murderer (Oney, p. 391); they failed to find any genuine witnesses to deviancy of this sort on Frank's part (Oney, p. 392)
It is noteworthy that Conley's lawyer refused to let Conley talk to Burns (Oney, p. 393). Monteen Stover, the young girl who claimed Frank was out of his office at a crucial time (making her one of the most important prosecution witnesses other than Conley) also avoided Burns.
Burns eventually was driven from Georgia; when he went to visit Mary's hometown of Marietta, he was chased from the town (Oney, pp. 401-403). Witnesses for Frank also suffered the wrath of Georgia; Mineola McKnight, who had testified for Frank, was slashed in the face during the appeals (Oney, p. 422).
In the end, Georgia justice refused to act; the judge (not Judge Roan) responsible for deciding on a new trial barred most of the defense's best evidence (Oney, pp. 403-411), and the state Supreme Court promptly concurred (Oney, p. 446).
Frank's lawyers finally appealed to the United States Supreme Court. Reading the description in Dinnerstein, pp. 109-113, it really sounds as if the Court used a series of quibbles to refuse to intervene -- but refuse they did. A first appeal was denied without explanation (F/T, p. 70; Oney, p. 452, notes that the only statement was the single word "denied"). The second appeal (on the broader grounds of habeas corpus) at least reached the full court (Oney, p. 460), but was denied on April 19, 1915 (Dinnerstein, p. 117) by a vote of 7-2 (Hall, p. 317), with justices Hughes and Holmes dissenting.
(You have to wonder what might have happened had the case come up two years later, after Justice Brandeis joined the court, but this was 1914, not 1916. The flip side is, the blatantly anti-Semitic justice James Clark McReynolds, who was such a boor that he could not even speak civilly to justices Brandeis and Cardozo, had joined the court in 1914; Hall, pp. 542-543.)
Those wishing to look up the case in legal articles will find it under "Frank v. Mangum." The court majority's decision was written by justice Pitney, who considered theGeorgia appeals process to have eliminated any irregularities in the original trial; Hall, p. 317. Pitney, appointed to the court by President Taft in 1912, had never studied law formally and had a firm belief in individualism, the overwhelming authority of contracts, states' rights, restricted rights of labor, and extremely limited government -- although, oddly enough, he supported workmen's compensation; Hall, pp. 635-636. Hall, p. 317, declares the Frank case a "clear miscarriage of justice."
F/T, pp. 71-72, notes that the court would later reverse itself in a similar case: In Moore v Dempsey, which reached the high court in 1923 (Hall, p. 560; this was a year after justice Pitney left the court; Hall, p. 636), the court found that irregularities such as those found in the Frank case were grounds for a new trial. (The case involved a riot in Arkansas in which hundreds of Blacks and five whites were killed. Several Blacks, convicted of murder, appealed for habeas corpus, which was denied by the lower court but upheld 6-2 by the Supreme Court; Hall, pp. 560-561). But that was later. The court decisions left Frank's friends with no recourse but an appeal for clemency.
While that was going on, William Smith, the lawyer for Jim Conley, released a statement concluding that Conley had committed the murder (Dinnerstein, pp. 114-115). This obviously sounds like a violation of attorney-client privilege, but Smith had two reasons for thinking otherwise. First, Conley had never told him what he felt was the truth, so he was not violating a confidence. Smith's declaration, according to Oney, pp. 427-430, was based solely on evidence he had found that Conley had lied (Dinnerstein, p. 115, says that Smith offered "no [single] convincing proof"; he was convinced by an accumulation of evidence).
In any case, Smith felt that to Conley was safe from further prosecution due to the law against double jeopardy; Conley had already been convicted of a lesser charge. In this connection, it is noteworthy that Dorsey declared that he thought Conley should not be punished at all. But the jury needed only twelve minutes to convict Conley of the lesser crime with which he was charged; Oney, p. 385. He was sentenced in February 1914 to a year on the chain gang, and actually served ten months (WebFlag). So Smith made the statement to try to save Frank (F/T, pp. 70, 78). But such was the climate of the time that those convinced of Frank's guilt thought Smith had been bribed; Dinnerstein, p. 115. Georgians by and large dug in their heels and refused to listen to reason.
Smith, like Judge Roan, would carry the Frank case to his death; the last words he ever wrote were a testament to the "innocence and good character of Leo Frank" (Oney has a photo preceding p. 455).
The appeals for clemency came from all over the country; Dinnerstein, p. 118, counts nine governors (many of them southern), at least seven senators, "scores" of congressmen, and many resolutions by state legislatures. F/T, p. 75, says that the state received 15,000 petitions for clemency; p. 86, claims that the governor was sent more than a hundred thousand requests. Dinnerstein, p. 118, claims that over a million people signed one or another petition. Eventually, even vice president Thomas R. Marshall would speak up, though not until later (Oney, p. 491). But the Georgia Prison Commission, claiming incredibly that no additional evidence had come in (Dinnerstein, pp. 121-122), voted 2-1 to deny Frank relief (F/T, p. 78). They did not explain their reasoning (Oney, p. 488), but one suspects that they were influenced by the large crowds who demonstrated against clemency (Oney, p. 486).
That left only governor John M. Slaton, whose term came to an end a few days after Frank's scheduled execution (Dinnerstein, p. 123). He apparently had hoped that the appeals process would drag out long enough that ye would not have to make a decision before his term ended (F/T, p. 70; Oney, p. 472, notes that he did not wish to act on a case involving Frank's lead defense lawyer Luther Rosser, who was technically his law partner, though Dinnerstein, p. 124, notes that the firms of Slaton & Phillips and Rosser & Brandon did not combine until after Slaton became governor; Slaton was a courtesy partner in the new firm and the two had never practiced together). In the end, though, the matter landed on his desk.
As had happened in all these cases, Hugh Dorsey represented the prosecution and a large team handled the presentation of the defense case. The one major new point was the state of the excrement Conley had left in the elevator shaft (Oney, p. 489). This of course demonstrated that a major portion of Jim Conley's testimony was inaccurate.
Slaton examined the evidence more thoroughly than any other judicial investigator, even testing the workings of the National Pencil elevator which played such a large role in the case (Oney, p. 501). The governor spent many days on his decision, apparently knowing that commuting Frank's sentence to life imprisonment would damage his political career and maybe even cause his assassination. (There was apparently no question of pardoning Frank; that would have been too controversial.) Finally Slaton decided to commute the sentence (Dinnerstein, p. 125).
It was, as F/T remark on p. 81, "political suicide." In a folkloric touch, his wife is said to have told him, "I would rather be the widow of a brave and honorable man than the wife of a coward" (Dinnerstein, p. 126). She very nearly was; it took militia to force the crowds away from Slaton's home (Oney, p. 504). He ended up leaving the state for years (Dinnerstein, p. 159), even taking up residence in ruined Romania during World War I (Oney, p. 609). Prosecutor H. M. Dorsey, on the other hand, rode his fame into the governor's mansion. To give him his due, Oney, p. 614, says that he proposed the broadest civil rights agenda of any southern governor of the time.
Slaton's summary of the case brought forward much more evidence than the actual criminal trial, and showed strong evidence of Conley's guilt (Dinnerstein, pp. 126-129) -- most, including Dinnerstein, consider it overwhelming evidence. Slaton pointed out the absolute proof that Conley had lied about using the elevator to move the body, argued that Frank was not strong enough to carry the body as far as he would have had to, and noted that there was not enough blood in the room where Conley said the body was found, and that the hairs did not match (F/T, pp. 86-87).
Slaton knew the commutation would cause trouble, and he prepared carefully for his ruling, trying to move Frank to a safer location (Dinnerstein, p. 126). Decoys were actually used to keep Frank safe on his journey (F/T, p. 86). Slaton also called out the militia -- wisely, since rioters tried to reach his home (Dinnerstein, p. 132); martial law continued until the new governor took office (F/T, p. 89).
The reprieve didn't help Frank much; he paid a high price for being left in custody. Although the commutation of his sentence meant that he was moved to a more pleasant prison, four weeks after he arrived, another inmate, William Creen, cut his throat (Dinnerstein, p. 137) using a butcher knife from the prison kitchen (Oney, p. 547); he would have died had their not been doctors among the prisoners to treat him immediately. Such was the sickness of the time that letters reached the new governor demanding that Creen be pardoned for his attempted murder (Dinnerstein, p. 138). The demagogue who led this campaign, Thomas Watson, publisher of The Jeffersonian, openly advocated lynching Frank (F/T, p. 90), and rejoiced when it was said, falsely, that the knife had been used to butcher hogs (Oney, p. 550).
About a month later, on the night of August 16, 1915 a mob broke into the prison where Frank was housed, where they handcuffed him (Dinnerstein, pp. 139-141). This was no casual break-in; F/T, p. 93, says that 25 men were involved, and they drove seven cars. Oney, pp. 511-524, catalogs some of those involved in planning the operation; they included lawyers, a judge, and a former governor (though none of these took part in the actual raid). One of them, in fact, was the solicitor responsible for prosecuting crimes in the area of the lynching! Naturally, he did nothing to seek the lynchers (Oney, p. 586).
It is evident that the raiders had tools, knowledge of the prison, and a careful plan. Insiders may have had some knowledge of what was coming; Oney spends many confusing pages discussing this, and Alan M. Dershowitz, who wrote an introduction to the Notable Trials edition of Dinnerstein, explicitly states that some prison officials were in on the plan. It took only seven minutes to kidnap Frank (F/T, p. 94).
It was hard for the authorities to call for help; most of the phone and telegraph lines had been cut, and the warden's car's gas line was cut. Clearly, the lynch mob didn't care that they were creating an opening for other prisoners to escape.
The mob then drove 175 miles, over mostly unpaved roads, to Marietta, Mary Phagan's home town (F/T, p. 95). There they hooded and hanged Frank. Inexpertly; his neck was not broken; rather, he suffocated and bled to death after his neck wound reopened; Oney, p. 566. Despite their ineptitude, the lynchers had accomplished their goal; Frank was dead.
At least one witness kicked the body and stomped on Frank's face after he was cut down (Dinnerstein, p. 144). Souvenir hunters cut off portions of his clothing (F/T, p. 97), and photos of his lifeless body were sold for 25 cents (F/T, p. 98). The oak from which he was hung became the site of a perverse sort of pilgrimages (Dinnerstein, p. 145). A local coroner's jury refused to return indictments against men known to have taken part (Dinnerstein, p. 145; Oney, p. 586, says that the local coroner had been a member of the original Ku Klux Klan) -- even though some of the lynch mob actually volunteered to talk to reporters (F/T, p. 105). Only one man had the decency to recover Frank's wedding ring for his wife, and he seemingly had to do so anonymously (F/T, p. 106).
A man who had known Leo Frank and declared that "He couldn't be guilty of such a thing" recalled the time of the lynching: "I happened to be at Five Points [in downtown Atlanta] the morning after Frank was lynched. There muse have been five or six of these men, they would be called red-necks, drove into Five Points. And they displayed a piece of the rope with which they had lynched Frank. They were pretty well received by the folks at Five Points. You can imagine how I felt. They were hazardous times. They were frightening times. We were all frightened" (Kuhn/Joye/West, p. 253).
Supposedly the whole incident led to a revival of the Ku Klux Klan in the area (Dinnerstein, p. 150; F/T, p. 95; Oney, p. 607, tells of them openly applying for a state charter in 1915); certainly the Klan was still making pilgrimages to Mary's grave more than half a century later. They also sent a great cross of flowers when Tom Watson died (Oney, p. 615); after all, it was his poisoned pen that had inspired their rebirth. (For more on Watson and his death, see "Thomas E. Watson," a song written by Andrew Jenkins after his decease.)
Is it any wonder that Frank's family took his body north for burial?
It is worth noting that, in this period, Georgia experienced several dozen lynchings per year, and is said to have been the lynching-est state in the Union (Oney, p. 122). In 1915, all but one of the 22 people lynched were Black (Oney, p. 513). The one exception was Frank. Whether innocent or guilty, there is no real question that the reason Frank died is that he was a Jewish Yankee living in Georgia.
Although many, including the new governor, Nathaniel E. Harris, publicly condemned the lynching, none of Frank's murderers were ever brought to trial (Garrett, p. 628).
More data came in after Frank's death. In 1922, a reporter discovered that there were photos of bite marks on Mary's body, and concluded based on what was known about Frank's teeth that Frank could not have made those bites (Dinnerstein, p. 158; Oney, p. 617). The reporter's reward was to have his car forced off the road; for years, the data was suppressed.
Even more dramatically, in 1982, a witness came forward with evidence that Conley had lied about his part in the affair. Alonzo Mann, a boy who had been in the factory on the fatal day, had seen Conley carrying Mary Phagan's body around the time of her murder. What's more, he saw Conley with the body *on the first floor* and not in the presence of Frank; according to Conley's testimony, he had taken it from the second floor to the basement via the elevator, meaning that he should never have stopped on the first floor, and that Frank should have been with him even if he had (WebFlag). Having been threatened by Conley, Mann was advised by his mother to keep quiet at Frank's trial (F/T, p. 157). He did tell his story to a few people, but for a long time no one, not even the Jewish community, wanted to reopen old wounds (F/T, p. 148). Only much later did The Tennessean become interested and interview Mann. He took a polygraph test to verify his story. (Tennessean, p. 2.) He was also examined psychologically (F/T, p. 150). He passed both tests.
Several of the major witnesses against Frank had interesting careers in the years after his trial. Monteen Stover, the fourteen-year-old girl who claimed that Frank was not at his desk at the time the prosecution claimed the murder took place, would some years later be charged with being the lure in a "badger scam" to extort money from married men who had affairs (Oney, p. 618). George Epps, who had claimed Mary Phagan was afraid of Frank (an odd claim, given that she risked being alone with him when she collected her pay) was sent to a reformatory in late 1913 for stealing (Dinnerstein, p. 86). It was Jim Conley, though, who had a truly extraordinary record.
On November 1, 1915, Conley (who, you will recall, had a common law wife) was picked up in a "disorderly house." He escaped a prostitution charge by claiming he wanted to marry one of the girls -- and he was so popular that the judge and spectators put up the license fee which he said he could not afford. But he was arrested *three times* for wife beating in the next three and a half months (Oney, p. 612). In 1919, he was injured in an attempt to burglarize a drug store, and was sentenced to twenty years. In 1941, he was arrested for gambling. In 1947, he was picked up for drunkenness. Dinnerstein, pp. 158-159, cites at second hand an obituary notice from 1962. Oney, p. 647, says that there is no record of his death though a witness in 1970 said he had died. WebFlag notes the lack of an obituary or death notice but cites the 1962 date.
A memorial to Mary Phagan was erected in 1915. One speaker went so far as to refer to her as "sainted" (Dinnerstein, p. 136). The inscription was written by none other than Tom Watson, according to WebFlag.
Although we have no absolute evidence for when this song was composed, it seems to be a pretty good reflection of the murderous mood in Georgia. It is also a fairly accurate reflection of the story told at the trial. The list below summarizes factual details listed in the various versions. I have listed the versions which contain each fact. I have also listed which statements are true, false, or disputed.
The versions cited are those of:
Burt1: The first full text of Burt-AmericanMurderBallads, pp. 61-62, sung by Thelda Barris and collected probably around Ibapah, Utah, c. 1926; quoted by F/T (with incorrect stanza divisions), pp. 139-140. This version is fascinating in that it never mentions Leo Frank, which makes it seem that Newt Lee was the criminal. However, it cannot be an early version of the song, since it mentions Judge Roan and prosecutor Dorsey. The version of Cambiaire-EastTennesseeWestVirginiaMountainBallads, interestingly, also seems to follow this outline, and does not mention Roan or Dorsey.
Burt2: a partial text of Burt-AmericanMurderBallads, pp. 62-63, from Pearl Flake, who was originally from Atlanta though apparently she was working for Burt c. 1940 when the song was collected. F/T quote this on pp. 140-141.
Burt3: A fragment, printed by Burt-AmericanMurderBallads, pp. 63-64 with no source listed and repeated by F/T on p. 141.
Cambiaire: From Cambiaire-EastTennesseeWestVirginiaMountainBallads, p. 104. No source information given. The murderer is unnamed, and the trial is not mentioned.
Carson1: Fiddlin' John Carson, as given by Wiggins, Fiddlin' Georgia Crazy, and quoted by Oney, p. 492f.
Carson2: Fiddlin' John Carson, apparently as given in the Atlanta Constitution, August 18, 1915, and quoted by Oney, p. 571f. This seems to be the earliest report of the song, but I suspect the reporter managed to take down only part of it.
Eddy: Eddy, p. 252. A very incomplete text, which Eddy had from Mrs. Lawrence Davis of Perrysville, Ohio. In this, the version is called "Mary Pickford" (obviously an error for the actress, who however was still alive at the time Eddy collected the song!). I suspect fragments of other songs may have mixed with this -- it even appears to say that *Mary* called a policeman. The murderer is not named.
G/C: Gardner/Chickering-BalladsAndSongsOfSouthernMichigan, p. 144. Sung by Margaret Tuggle of Detroit but apparently learned in Virginia.
JAFL: Journal of American Folklore, 1918; quoted by Dinnerstein on pp. 166ff.
McNeil1: McNeil, Southern Folk Ballads II, p. 71, from Mrs. Artie Waggoner, Creston, Louisiana, 1977. In this the murderer is called "Leo Benton," presumably a mix-up with other ballads of this type.
McNeil2: McNeil, Southern Folk Ballads II, p. 72, from Reba Cheyne, Fort Smith, Arkansas, 1979. A defective version which appears to include primarily the early verses.
The historical details found in the versions are as follows:
* Correctly states that Mary worked in a pencil factory (versions of JAFL, Cambiaire-EastTennesseeWestVirginiaMountainBallads, Carson1, Carson2, Burt1, Eddy, G/C, McNeil1, McNeil2)
* Correctly states that Mary was going to collect her pay (Carson1, Carson2, Burt1, Cambiaire-EastTennesseeWestVirginiaMountainBallads, Eddy, G/C, McNeil1, McNeil2)
* Correctly states that Mary was very pretty (G/C)
* States, probably correctly, that Mary was going to see the Memorial Day parade (JAFL)
* Correctly states that the murder took place on a holiday, in this case, Confederate Memorial Day (JAFL, Carson1, Burt1)
* Correctly states that she went left home around 11:00 on the fatal day; she had the lunch of cabbage and bread that caused the forensics people so much trouble shortly after 11:00 and then set out for the trolley (JAFL, Carson1, Carson2; Burt1 and McNeil2 incorrectly give the time as 7:00)
* Correctly states that Jim Conley was given a year's sentence (though the song implies that Frank and Conley were tried together, which is false) (JAFL)
* Correctly states that the body was found in the basement (JAFL, Cambiaire-EastTennesseeWestVirginiaMountainBallads, Carson1, Burt1, Burt2, McNeil1)
* Correctly states that Newt Lee found her body (JAFL, Carson1, Burt1; Cambiaire spells it "Nute Lee"; Burt2 calls him "Nemphon"; McNeil1 has "Jim Newt" -- perhaps combining "Jim Conley" and "Newt Lee"?)
* Correctly states that Lee was imprisoned for a time (JAFL, Carson1)
* Correctly states that Mary's mother was wild with grief (JAFL, Carson1, Burt1, Burt 2, Burt3, G/C, McNeil1)
* Correctly states that Solicitor H. M. [Dorsey] was the prosecutor (JAFL, Carson1, Burt1)
* Correctly states that Judge Roan tried the case (Carson1, Carson2, Burt1; McNeil1 calls him "Judge Long")
* States that Mary was murdered in the metal room, agreeing with the prosecution but not the defense (JAFL, Carson1, Burt1; McNeil1 and others call it the "little room"; Cambiaire-EastTennesseeWestVirginiaMountainBallads has "middle room")
* States that Leo Frank called on Jim Conley to carry the body, agreeing with the prosecution but not the defense (JAFL, Carson1)
* States that "the janitor" lured Mary to a dreadful fate, agreeing with the defense but not the prosecution (Burt3, G/C)
* States incorrectly that "the janitor" let Mary into the factory (Burt3, G/C); since the factory was not locked, she would not have needed admission
* States incorrectly that Frank had children (JAFL); that may, however, be a holdover from its source, since the song is based on the "Charles Guitea"/"Murder of F. C. Benwell"/"Ewing Books" family.
* States incorrectly that Mary was "bound both hands and feet" (JAFL, Carson1); there was cord around her neck, but none on her hands and feet.
* States incorrectly that Mary was her mother's "sole support" (Burt3, G/C)
* States incorrectly that "the janitor," rather than Frank, was strung up (Eddy, G/C)
Looking at the versions, it appears that the song exists in three "states." In one, it seems to have ended with the discovery of the body and the police telling Newt Lee that he "must go" (presumably to prison). A second state, associated particularly with Fiddlin' John Carson, brings in Leo Frank, accuses him of the murder, and credits H. M. Dorsey with convicting him, but does not mention the appeals or the lynching. A third state mentions the lynching, though the versions I've seen seem to describe the janitor (i.e. Conley), rather than Frank, as being lynched.
The data is not sufficient to form an absolute conclusion, of course, but this would seem to imply three stages of composition: A very early version, in circulation before Frank's trial; a second completed after he had been convicted (and probably after Conley had been convicted also, given the mention of his sentence), and a third after the lynching. Possibly this last stage involved *two* rewrites, one to add the lynching, the other (perhaps northern) to blame Conley, and these two fused.
And, yes, I know that's an extremely complicated reconstruction based on very flimsy evidence! But how else to explain versions which explicitly blame Leo Frank, explicitly blame "the janitor," and implicitly blame Newt Lee? It's hard to see such changes happening by accident.
Few of the sources I've seen credit this song to an author, but Malone, p. 220, credits it to Fiddlin' John Carson, whose daughter Rosa Lee is credited with the first recording of it. His footnote lists several sources for the murder, but it's not clear how authorship was established. Dinnerstein, p. 121, says that Carson was singing the song at rallies in Georgia in this period -- but his footnote as to sources contains no reference to Carson. Oney, p. 491, cites Fiddlin' Georgia Crazy by George Wiggins as the source of the attribution, and says that Carson sang it during the hearing before Governor Slaton.
Nonetheless, I don't think the evidence quite strong enough to prove that Carson wrote the song (or, rather, the lyrics, since the tune is borrowed). He *does* seem to be particularly associated with the second version, which convicts Frank but does not mention the lynching. It strikes me as likely that he converted the first stage of the song to the second, and the evidence is strong that he made it popular enough that Vernon Dalhart recorded it -- and that, of course made it popular indeed. But I would not wish to bet on whether he wrote the first version. And I strongly doubt that the lynching version is his.
So who killed Mary Phagan? It is unlikely that we will ever be able to acquire any evidence beyond what has already been discussed. Alonzo Mann, the last significant witness, died soon after giving his testimony. Oney, p. 647, says that the physical evidence collected by Hugh Dorsey is gone. WebFlag notes that the National Pencil Company building was demolished June 6, 1994. Even if the family consented to having it exhumed (which seems unlikely), we can hardly hope to learn anything from Mary's body at this late date. Jim Conley's last resting place seems to be unknown, so we couldn't get DNA evidence from him under any circumstances. So all we have is the records of the evidence collected at the time. On this basis, Oney manages the curious summary that "the argument [will] never move beyond Conley's word versus Frank's" (p. 647). That is indeed the key point, but surely we can go beyond "He said, he said" to express probabilities.
(To give Oney his due, according to WebFlag, which reviews Oney's book, Oney is personally convinced that Frank is innocent and Conley guilty.)
Basically, we have three possible murderers: Leo Frank, Jim Conley, or an unknown someone else. There is no evidence for someone else, though we cannot deny the possibility given the ease with which many people entered the National Pencil building. (The one person we know was there at the time, Monteen Stover, seems never to have come under suspicion. Nor does she seem a likely suspect; I mention her only to show that the possibilities have not been fully examined.) However, if it were someone else, why would Conley have implicated Frank? And why write the murder notes if not to divert suspicion? (For this point see WebFlag.) Since Conley is unequivocally known to have carried the body, based on Mann's testimony, and also wrote the murder notes, he surely knew who committed the crime. Since he mentioned only himself and Frank, Conley's testimony strongly implies that either he or Frank did it.
If we look at the classic tests of a crime, "motive, means, and opportunity," we know that Conley had greater motive (either man might have had a sexual motive, but Conley also had robbery as a motive, plus we known that he had quite the sex life). Conley is known to have had the opportunity -- after all, Mann saw him carrying her body! By contrast, there is no evidence linking Frank directly with Mary, though he of course did see her on the day of her death. As for means, Conley was a strong man who could have overcome her; Frank was a weak man who was unlikely to win a battle to the death even with a thirteen year old, and he showed no scars of such a fight.
Also, nearly all testimony against Frank was either perjured (if a witness makes a claim and then denies it, we can hardly treat either claim as reliable, no matter what Georgia law said) or from very questionable sources such as Monteen Stover.
Finally, we have the known facts that Conley was a robber, and a wife-beater, and a drunk. His first accounts of the crime were perjured, and the "shit in the shaft" and the testimony of Alonzo Mann show that his final testimony was also perjured. I can imagine no reasons to commit perjury except to cover up crimes of his own (which must mean the murder of Mary Phagan) or to punish Frank somehow (which is hard to believe, given that Frank had kept him on the payroll despite his repeated petty crimes. Conley should have been incredibly grateful to Frank!)
Unlike Conley, Frank had no criminal record. Yes, he ran a company that was little more than a sweatshop, but that was the law at the time. Oney wonders why there were so many allegations of sexual impropriety against him, but ignores the fact that the witnesses didn't even agree on whether he was a homosexual, a heterosexual paedophile, or a fetishist (and very few people are all of these). Plus most of his accusers were ex-employees who might have carried a grudge. And, while many people claimed to have seen him having illicit liaisons, *no one every came forward admitting to being one of the liaisons*.
As best I can tell from Oney, only one of Frank's alleged conquests, a woman named Daisy Hopkins, was ever mentioned by name (Oney, p. 245; it was Conley who gave her name, and Oney, p. 247, shows that Conley knew nothing about her except a name, though one C. Brutus Dalton also mentioned her; Oney, p. 258). A Daisy Hopkins was brought before the court, and she denied any sexual relationship with Frank (Oney, pp. 265-266), though she apparently wasn't a very convincing witness (Oney, p. 268). Still, William Smith, who apparently knew her, later declared that he didn't believe there was such a liaison (Oney, pp. 436-437).
So my conclusion is that it is nearly certain that Jim Conley killed Mary Phagan. Dershowitz in the introduction to Dinnerstein, Dinnerstein himself, F/T, WebFlag , and the Tennessean all agree with this. It is probably impossible to prove beyond reasonable doubt at this stage, but it is clearly the highest probability. And even if Conley were innocent, he was still guilty of perjury, for which he was never tried.
The next highest probability is surely that, despite Jim Conley's behavior in accusing Frank, an unknown person (probably someone known to Jim Conley) committed the crime. In this case, the unknown person must also have had a hold on Conley. (Not unlikely, given Conley's history.)
Leo Frank is almost certainly innocent. Even if (perhaps a chance in a thousand) he were guilty, the testimony presented at his trial clearly was not enough for conviction. It wasn't even enough for a mistrial. Judge Roan should have declared him innocent and not even sent the case to the jury. But that would very likely have cost Roan his life (and, very possibly, Frank's as well; he would probably have been lynched before he could get out of the state).
After Alonzo Mann came forward, a first attempt to have Frank cleared failed when, amazingly, some of Mary's living relations objected (F/T, p. 153), but a second appeal succeeded. Frank's name was formally cleared in 1986 (F/T, p. .xix), 71 years after he died, an innocent man whose only crime was to be "different." Frank's wife Lucille had remained faithful to him all her life, but died in 1957 without seeing him given the justice he deserved.
Dinnerstein, p. 156, states that "With the Supreme Court so zealous in its defense of civil liberties today, it is extremely unlikely that another Frank case could occur." He wrote that in the days of the Warren Court. But the "convict 'em or else" mentality that motivated so much of what happened in the Frank case persists today, and increasingly the courts and legislatures are re-imposing the sort of "innocence is no excuse" rules that deny appeals not filed in a timely and legally correct way. The old-time singers often added the interjection "Young girls, take warning" to this song. But the real warning may be for us. - RBW
Bibliography- Dinnerstein: Leonard Dinnerstein, The Leo Frank Case, was originally published by Columbia University Press in 1968 (it began as a doctoral thesis). I use a special edition from "The Notable Trials Library," 1991, which includes Dinnerstein's new preface to a 1987 edition of his book, plus the special article from The Tennessean cited below. Of the books on Mary Phagan cited here, this and Golden are the only one written before Alonzo Mann gave his testimony, so they operates on essentially the same data as was available in 1915. This gives it an interesting perspective in light of what followed. Dinnerstein is also, I think, the volume most interested in the matter of Frank's Judaism, and certainly the one most concerned with how the social unrest caused by urbanization created a climate of xenophobia. (I'm not sure I believe that part; recent indications are that some of the things Dinnerstein blames on culture are in fact biological.) The text of the article from The Tennessean is cited under that name, since it has its own separate pagination.
- F/T: Robert Seitz Frey and Nancy C. Thompson, The Silent and the Damned: The Murder of Mary Phagan and the Lynching of Leo Frank, 1988 (I use the 2002 Cooper Square Press edition). This is, apart from its appendices, the shortest of the three recent books, and perhaps more popular and less scholarly than the others; it has footnotes, but is not nearly as heavily documented as the others. My guess is that it was inspired by the Mann revelations; it claims to be the first book about the Phagan case written after Mann's testimony.
- Garrett: Franklin M. Garrett, Atlanta and Environs: A Chronicle of Its People and Events, volume II (1880s-1930s), 1954 (I use the 1988 printing of the 1969 facsimile reprint)
- Golden: Harry Golden, A Little Girl Is Dead, 1965 (I use the 1967 Avon edition)
- Hall: Kermit L. Hall, editor, The Oxford Companion to the Supreme Court of the United States, Oxford, 1992
- Hofstadter: Richard Hofstadter, The Age of Reform, Vintage, 1955
- Kuhn/Joye/West: Clifford M. Kuhn, Harlon E. Joye, and E. Bernard West, Living Atlanta: An Oral History of the City, 1914-1948, Atlanta Historical Society/University of Georgia Press, 1990
- MacLean: Nancy MacLean, "Gender, Sexuality, and the Politics of Lynching: The Leo Frank Case Revisited," essay in W. Fitzhugh Brundage, Under Sentence of Death: Lynching in the South, University of North Carolina Press, 1997, pp. 158-188
- Malone: Bill C. Malone, Don't Get above Your Raisin': Country Music and the Southern Working Class, University of Illinois, 2002
- Oney: Steve Oney, And the Dead Shall Rise: The Murder of Mary Phagan and the Lynching of Leo Frank, 2003 (I use the 2004 Vintage Books edition). This is by far the most detailed book -- in some ways, too detailed, more of a chronicle than an analysis, and much of the detail not really relevant (does it really *matter* that one of those who arranged Frank's lynching had a brother who got in trouble at school?). Sometimes it feels more like a ping-pong match, as pro- and anti-Frank forces gain an advantage. Strangely, Oney never once says who he thinks murdered Mary Phagan. This is the third of the three books I read, and I'm glad of that. It would be too easy to lose the overall thread of the case otherwise.
- PresElections: Arthur M. Schlesinger, Jr., Fred L. Israel, and William P. Hansen, editors, History of American Presidential Elections, Volume II (1848-1896), Chelsea House, 1971
- Tennessean: The Tennessean magazine, special article,March 7, 1982 edition, which details the evidence given by Alonzo Mann. This article has been reprinted (with separate pagination) in the Notable Trial Library edition of Dinnerstein, from which I have cited it.
- WebFlag: After this article was almost finished, I found this review of Oney, part of which apparently appeared first in Flagpole magazine and which is in fact much more than a review; it is an analysis of the case almost entirely from scratch. It doesn't really add much new information, but it includes much analysis. The site also includes information gathered since Oney was published, including notably much information on research on members of the lynching party. The original version of this article has been taken down; what is stated to be a slightly revised version is at file:///Users/rbw/Downloads/Wrongly%20Accused.pdf (checked July 27, 2023), but it is possible that some material cited in the above essay is no longer included
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The Ballad Index Copyright 2024 by Robert B. Waltz and David G. Engle.