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THE ATLANTA GEORGIAN AND NEWS.
DEFENSE SHIFTS BURDEN
By JAMES B. NEVIN.
The defense In the Frank case did
the expected thing when it boldly
and unequivocally put Frank’s char
acter in issue.
It indicated its confidence in th©
Justice ot tfte deefndant’s cause in do
ing that, and it met thus a crisis that
it hardly could have successfully
overcome otherwise, if it so happen
that it does overcome It eventually.
Having taken the initiative in the
matter of thrashing* out Frank’s
character, the State will now be forced
to make out an unmistakable case of
bad character against Frank, or it is
likely that the State’s injection of the
sinister charge against him. in addi
tion to the charge of murder, may op
erate as a boomerang to the State’s
great hurt finally. 4
It is not to be wondered at that the
defendant’s mother, tried and racked
in spirit and pride as she surely must
have been, should have let her feel
ings overcome her for an instant dur
ing the course of Wednesday after
noon’s hearing. I do not suppose it is
even remotely possible for any person
not a mother to understand all she has
gone through.
Her vehement protest against the
vile things being said and hinted
about her boy—true or untrue, though
such things always are untrue ; n
mother love, I take It—serves to il
lustrate, however, how very vital to
the defense now is the establishing of
Frank’s good character.
I doubt that anything thus far said
to the jury has so profoundly im
pressed it as the unspeakable thing
Conley said of the defendant. The
jury is only human, and It can no
more dodge impressions than other
people can.
Impression Must Be Erased.
The defense is up against the her
culean task of removing all of that
impression from the mind of the jury
—the twelve minds of the jury, indeed
—for it will not do to leave even a
fraction of Conley’s story undemol
ish «d!
Manifestly, therefore, the defense
could not, if it would, get away al
together from the matter of Frank’s
character. It found itself necessarily
forced to the other extreme of the
situation set up by the State.
The State, on the other hand, by
reason of the defense's challenging
attitude in the matter of forcing the
issue of Frank’s ch racter. must now
corroborate the frightful story of Con
ley, or I think it may suffer before the
jury irreparable injury.
Curiously enough, the burden of
proof in the Frank case emed to
have been shilLed a week ago—that
t*. whereas the burden is legally im
posed upon the State, it being the
theory of the law that a defendant
goes into court with the presumption
of innocence in his favor, i‘ appeared,
after Conley had made his awful
charge, that the burden then was
shifted onto the defense to prove
Frank's innocence, rather than that
the State should prove his guilt.
In putting Frank character In is
sue, however. I now think the defense
has shifted back the burden, In large
measure, anyway, to where the law
contemplates it shall rest.
The State must complete Its proof
of Frank’s depravity, or the State w’i'l
not have made out such a case as
likely will stand to the last analysis.
Defense Plans Its Climax.
As the State moved in the begin
ning of the Frank trial, steadily and
consistently to the negro sweeper, Jim
Conley, as the climax of its case, so
to-day the defense is moving, every
bit as steadily and as persistently, to
the defendant, Leo Frank, as the cli
max of its case.
The State’s case progressed ever
up to Conley—the defense’s case is
progressing ever up to Frank.
It is Conley vs. Frank no less than
it is *iic State vs. Frank.
No intelligent and discriminating
observer, abreast with the status of
the trial, doubts that, or has doubted
it for days.
Either Leo Frank’s life will an
swer for Mary Phagan’s, or Jim Con
ley's will!
The capstone of the defense un
doubtedly will be the defendam'3
statement. He will make it just be
fore the defense rests its pleading.
Already, Uhls anticipated dramatic
event has cast its shadow before. The
public is looking forward to Frank’s
attorneys. He siimply states what he
personal statement with no less keen
interest than it looked forward, per
haps, to the terrible story of Conley.
Frank will be permitted, under the
law, to make a statement to the jury,
but without being permitted to swear
to its truthfulness. The jury will be
instructed that it may accept that
statement, if it so elects, in preference
to all the sworn testimony in the case;
or it mav accept it in part and re
ject it in part; or it may reject it
altogether.
The Jury alone and finally is made
the sole judge of the defendant’s cred
ibility on the stand.
The defendant can not be im
peached; he can not be cross-exam
ined; he can not be prompted by his
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pleases, in the exact way he pleases,
and in such detail or lack of detail
as he pleases. It is strictly a matter
between the defendant and the jury.
Leo Frank is one of the few de
fendants in murder cases coming un
der my observation, who absolutely
refrained from discussing his case, in
any phase of it, in advance of his
trial.
Only at the Coroner’s inquest, where
he was obliged to talk, has he opened
his lips to speak concerning the
charge brought against him. In adopt
ing this course, he unquestionably was
well within his legal rights, and well
within the bounds of common sense,
too, no doubt—but the fact remains
that the course he pursued is the un
usual one.
I said in a former article that Frank
apparently is a very patient man
and such men fight mighty hard when
once aroused—and the more I reflect
upon that observation, the more I am
inclined to emphasize it.
He has waited four months to tell
his story—but when he does tell it, it
will be related in the proper pres
ence, th© court and the jury.
It is unlikely that the public
wishes to hear anything quite *>
much as exactly what Frank himself
has to say of the charges lodged
against him. ’ v *
It has heard what everybody else,
both intimately and distantly con
cerned, has had to say. It has heard
Conley’s story from Conley’s own lips
—but thus far Frank has been as
silent as the grave of the dead girl
it seIf!
It is impossible to forecast the ef
fect of Frank’s statement upon the
Jury. It may have as “owerful an
effect in clearing him as Conley’.^ hor
rible statement surely must have had
by wav of then condemning him.
juries Have Accepted It.
I have seen cases in which the de
fendant’s statement alone evidently
served to clear him. I have known
Juries to accept it as the truth, over
and above all the sworn testimony-
just as the jury has the unquestioned
light to do.
On the other hand, I have seen the
defendant’s statement fall flat and
stale. I have seen it have no more
effect upon the jury than rain has
upon a duck’s back.
It all depends upon the defendant s
manner and bearing on the stand, the
seeming sincerity of his recital, its
plausibility and probability, the char
acter of th« man making it, his in
telligence and apparent directness of
purpose, the necessity of the state
ment as bearing alone and entirely
upon weak points in either his 6wn or
the State’s case, and many other
things.
The defendant’s statement presum- !
ably dovetails, of course, into the case
his lawyers theretofore have made
out—and yet I have known the de
fense to introduce the defendant the
first thing, and proceed thereafter to
the building of a case around his
statement.
As this case is so thoroughly a fight
between Conley and Frank—that is,
between Conley’s evidence and Frank’s
evidence—it will he intensely in
teresting to watch and see how even
tually the jury views the relative
value of both.
Much Rests on Defendant.
Conley’s story, as amazing and as
shocking as it is in parts, neverthe
less has been accepted by many as
the truth. Presumably, those peo
ple who already have made up their
minds still are willing to be convinced
—as violent as the presumption may
be in some cases—if Frank can con
vince them.
Upon Frank’s statement, therefore,
it Is entirely possible the entire case
may turn finally.
To discredit Frank’s statement, to
be sure, will be his heavy self-interest
and the fact that it is not upon oath
and not subject to cross-examina
tion. •
To discredit Conley’s story, how
ever, la his also heavy self-interest
and the fact that, while his story
was delivered on oath, his character
admittedly’ is very bad and his nu
merous previous sworn statements
admittedly false in many important
details.
The situation thus set up Is about
as pretty a* it could be, from an ab
stract legal standj oint. If it were a
surgical problem we were considering,
I should predict that the operation
will be beautiful and brilliant in any
event—but as for the patient—well, 1
really could not say 1
Frank’s Mother Resents
Questioning of Dorsey
steelworkers STATE’S SOLE 11 IS TO
CONIT, DEFENSE'S TO
T
F
L
The calling of four character wit
nesses Wednesday ‘opened the flood
gates for the State to get before the
jury all of its accusations against
Frank, and was the direct cause of a
frantic outburst on the part of Mr*.
Rae Frank, mother of the defendant,
who rose from her chair and dramat
ically denounced Solicitor General
Dorsey.
It was the first scene created by any
of the members of the prisoner’s fam
ily. Frank’s wife and mother were
perceptibly affected when the Solici
tor previously was hurling his charges
of gross misconduct against the de
fendant, but both had restrained
themselves from any marked demon
stration.
Feeling Reaches Bursting Point.
The elder woman persistently had
maintained an almost expressionless
face while the most abhorrent charges
were being made. Save that she
looked away from the crowd as if it
were a terrible ordeal to listen to the
testimony, it would have been impos
sible to tell that it was one of her
loved ones against whom the charges
were being made.
Her feelings, however, had reached
the bursting point Wednesday. She
could stand the attack against her
son’s character no longer. From the
impassive and quietly suffering wom
an she was goaded to the fury of a
tigress.
From the lips of the Solicitor Gen
eral flowed a stream of implied ac
cusations. He asked about alleged
incidents in Frank’s office at the fac
tory, a4>out incidents in the girls’
dressing room which the Solicitor in
timated that Frank invaded without
apology or excuse.
The mother of Frank lifted her eves
to the Solicitor. There was in them
no longer the look of resignation with
which the other charges had beeo
met. In its place blazed hate and
outraged mother love. She was will
ing no longer to await the end of tho
trial for her son’s vindication.
The Solicitor continued. He gave
the names of girls of tender years. He
narrated circumstances that brought
a crimson flood to the face of the
younger Mrs. Frank.
"Haven’t you heard of these sto
ries’.’” he asked insinuatingly of
the witness, Ashley Jones.
"No. nor you either!” cried the
mother.
She was on her feet. The court
room was astounded at the sudden
ness and dramatic intensity of the
outburst. Persons rose here and there
among the spectators, oblivious of
the calls fur order of the court at
taches.
Mrs. Frank stood in hysterical in
dignation before the Solicitor. She
said things to him that were lost in
the confusion. She would have con
tinued her tirade had she not been
restrained by court deputies and
members of her own family who rush
ed to her side to quiet and comfort
her.
"My GqcI, my God,” she moaned as
she was led sobbing from the court*
room. She was taken home in a hys
terical condition. She returned to
ward the close of the afternoon ses
sion, but did not re-enter the court
room.
If the denunciation affected, the So
licitor, he did not show it unless it
was by a line of questioning even
more severe than he had pursued be
fore.
Testimony Aids Frank.
Jones, an insurance man, in whose
company Prank holds a policy, de
nied that he had heard any of the
reports of alleged immorality.. He
said that the young man’i, record, in
respect to health, habits and morals,
had been very thoroughly investigated
before the policy was issued. He tes
tified that Frank showed an unusual
ly clean record.
The bars w'ere let down for the in
troduction of testimony against
Frank's character when the defense
put on the stand Alfred L. Lane, of
Brooklyn, a classmate of Frank In
Pratt Institute. Lane said that he
had known Frank for fifteen .years
and that he knew he possessed a good
character.
jane was followed by two other of
Frank’s classmates.
They were Richard A. Wright, a
consulting engineer of Brooklyn, and
Philip Nash, a clerical engineer, of
Ridgewood, N. J. Both testified as to
his good character. Several wit
nesses intervened and then Ashley
Jones was called.
Important testimony was given by
Dr. William Owens, who was one of
four men who sought to reproduce
the disposal of Mary Phagan’s body
as Jim Conley described it. William
A. Fleming took the part of Frank
and a Mr. Brent the part of Conley.
Conley said that he ami Frank car
ried the body downstairs and re
turned to Frank’s office in about five
minutes.
Dr. Owens said that it took them
about eighteen and a half minutes to
carry out the drama in the pencil
factory, exclusive of writing the notes
and also exclusive of the time that
Conley said lie spent in the wardrobe
in Frank's office.
If the defense is able to make the
jurors believe that it would have
taken Frank and Conley eighteen and
a half minutes to accomplish this,
they will have established what is
considered a very strong alibi for the
superintendent. To this must be
added tho eight minutes that Conley
declares he was in Frank’s wardrobe
and about twelve minutes for the
writing of the four notes this is half
of the time that It probably would
have taken the negro to write them
according to the testimony of Harry
Scott, Pinkerton detective. This
makes a total of thirty-nine and one-
half minutes. Conley said they start
ed with the body at 12:56. The thir
ty-eight and one-half minutes would
have brought the time to 1:34 1-2.
But. according to one of the State’s
own witnesses, Frank had left the
factory and had arrived home at
1:30—or. in other words, had arrived
home before the disposal of the body
could have been accomplishe 1.
Quinn Severely Grilled.
Lemmie Quinn, metal department
By 1 L. F. Woodruff.
There is one class of men to whom
death is supposed to hold no horrors
They can not think of it and earn
their dally bread. Were the fear of
Iomh of life to enter their brain for
one single second during their daily
task they would be as useless as a
motorless automobile.
Their pay is high for scorning the
grave. They can see one of their
companions fall victim to the perils
of their calling and go back to work
on the same job a few minutes later
without a tremor, and encounter those
same dangers with footstep firm and
their minds only on th© work they
have to do.
These men are the structural steel
workers. They are as picturesque a
class as the struggle for dollar*? has
developed. The fascination of their
calling is universal. No man can pass
the place where a building is slowly
reaching its way into the clouds with
out standing in an awe-struck trance
watching these men scamper around
betw-een heaven and earth as though
they w’ere walking about a place as
safe as the quiet walk under the shade
trees of Grant Park.
Furnish a Bizarre Feature.
And these men make one of the
strangest studies of all the bizarre
features of the trial of Leo Frank.
Just across Hunter street from
Judge Roan’s courtroom, where the
factory superintendent Is fighting to
clear his name of the charge of hav
ing killed Mary Pnagan, Fulton Coun
ty’s magnificent new temple of justice
is nearing completion.
But there is still work to be done
on the dizzy height© of the upper
stories. The men of the building
trades are there and their interest in
the dramatic court battle that is being
waged within a wtone’s throw of them
is as intense as is the interest of any
of those who have sat through the
tedious days of the hearing constant
spectators of the trial.
These builders, from their lofty
working place acros the street, can
peer through the courtroom windows
and see the trial as it progresses.
They can not hear a word of the evi
dence. They miss tlie forensic clash ;s
of the counsel.
Dare Death to Watch,
But still there is not a moment of
the time that the case i* in progress
that life and limb are not risked b>
these men as they stare into the
courtroom.
They can see Frank as he sits
through hour after hour of his greqt
ordeal. They can get glimpses of
the faces of his wife and mother, of
tlie witnesses as they take the stun 3.
and of the Judge on the bench. They
, can see the bulky back of Luther
Rosser and the energetic gestures of
Hugh Dorsey. That is all.
To see these, things they must lean
far out from their insecure perches,
with death certain if they should fall
to the pavement a hundred feet below.
There is but one explanation for
their interest. They know' a man Is
fighting for his life in that courtroom
across tho street.
And while death may have no ter
rors for them, it has a fascination as
subtle as the stare of a serpent’s eye
to a bird, as strong as the rivets of
steel with which they earn their live
lihood.
By 0. B. KEELER.
foreman, receive! a severe grilling
from Solicitor Dorsey in the after
noon. but stuck to hip story that he
visited the office of Frank at about
12:20 the afternoon of the murder.
This is in contradiction of Conley’s
story, who testified that he saw Quinn
enter tlie factory before Mary Pha-
gan and Monteen Stover came. The
Solicitor displayed affidavits of Quinn
in which the foreman said he had been
at the factory sometime between 12
und 12:20 o’clock. Quinn said that at
the time he made the affidavit he had
I--p I he tim
he had been able to do since.
Other witnesses of the day were Dr
William S, Kendrick, head of the chair
of medicine of the new Atlanta Med
ical School; Frank Payne, a former
office boy for Frank, anil Oscar Pap-
penheimer, a stockholder in the Na
tional Pencil Factory.
Right in the first jump, please un
derstand that (1) this is merely the
opinion of a layman, unlearned in the
law; that (2) he may be the only
layman in existence who feels this
way about it; and (3) the Frank trial
is not being singled out in the fol
lowing comment, except as it Is a fair
example of the great criminal trials
of this country.
• • •
In following the trial of Leo Frank,
two points keep prodding me with
increasing fervor.
These are the points:
(1) That the prosecution’s efforts
are centered on producing evidence
that will convict Iveo Frank.
(2) That the efforts of the defense
are devoted to producing evidence
that w’ill acquit Leo Frank.
Now, having read thus far. you
probably are smiling to yourself at
the idea that anybody should under
take to write a newspaper story about
a great trial, basing it on such an
absurdly simple and obvious observa
tion.
State’s Evidence AM Damaging.
That (you say) i9 something every
body knows.
That (yon ray) Is taken for granted.
Nevertheless (I say), that doesn’t
make it right.
I sat in Judge Roan’s courtroom,
right at the edge of the Jury box.
and I heard the State prerent its case.
Every bit of the State’s evidence
was damaging to Leo Frank.
If the State of Georgia knew’ any
thing good about Leo Frank, or had
any evidence that tended to cast a
doubt on his guilt of a horrid crime,
the State of Georgia kept that in
formation strictly to itself.
I heard the defense begin attacking
the evidence offered by the State, an 1
offering (in turn) evidence that tend
ed to 'show the innocence of Leo
Frank.
If the lawyers of the defense knew’,
down in their hearts, that certain
points made by the State were true;
if they realized that certain facts wer©
unshakable; if In their investigation
they had found certain things that
tended to fasten on their client the
murder of Mary Phagan—if any of
this was in the mind of the defense
it did not get out where the jury
could see it.
How About Investigation7
Well (vou say), it would be a pretty
kind of defense that would produce
evidence that would hang the de-
fenunt. And (you added) isn’t that
what the State of Georgia pays its
prosecutors for?
For what?
Conviction?
Or INVESTIGATION?
That was the most unmerciful of
the prodding points.
.Of course, now, the State’s attor
neys in the Phagan case say they be
lieve Frank is guilty, and equally, of
course, the lawyers for the defense
declare they are convinced of the in
nocence of their client. But that is
always the case in important murder
cases, and furthermore, as I have
said, I am not talking about the
Frank trial as much as about a
system of justice.
I asked a lawyer about it; a widely-
read and learned lawyer, with some
thing in his head besides the law he
has absorbed.
I said:
"Honrstly, now—isn’t this system of
criminal prosecution ell wrong?
Oughtn’t the State b.ive investigators
instead of prosecutors? Why should
the accused have any defending coun
sel. Jf the State were not prosecuting,
but making a fair and impartial in
vestigation ?’’
I thought the idea was nighly origi
nal.
I learned something, right away.
The widely-read and learned law
yer informed me. kindly but firmly,
that that was on Original Idea a good
many hundred years ago. That it was
THE original Id* a of dealing with
criminal cases, in fact. That it was
pretty nearly fixed in the basis of
good old English law.
He went on to explain that In the
early days when a crime was com
mitted, the proper officer—I forget
what his title was—the proper of
ficer started an investigation. If a
man apparently was implicated by thw
first evidence brought to light, that
man was detained. If he had already
"beat It," that was added to the sus
picious circumstances against him,
ana the pursuit began.
But if he was well in hand, and th©
case was a regular mystery, the in
vestigator for the Crown, or whatever
It w’ae, went into that case exactly
like a certified accountant examining
a set of books, suspected by the firm
of not being correct.
Auditor Has No Interest.
The auditor doesn’t care a whoop
whether he finds the suspected book
keeper guilty or Innocent. That is,
he has no interest at stake. He is
paid for making a correct audit. Ho
is paid by the Job. Probably, unless
his liver is out of whack, he would
rather see the poor bookkeeper
cleared. But he has no interest in
the matter.
Well, it seems from what the law
yer told me, that w’as the original
plan of criminal prosecution by the
State.
The State d! (V ' prosecute. It just
investigated, it the facts produced by
the investigation warranted a jury in
"sticking" the accused, well and good.
If the evidence warranted the Jury in
turning him loose, also well and good.
The accused had no "counsel,” the
way w’e understand it. If he was a
rich person, or had rich friends, he
was privileged to employ an investi
gator, or Investigators, who would as
sist the public investigator in his in
vestigation.
Hired Help Might Convict.
But It was understood that if th©
hired help turned up anything damn
ing. the darning thing would be al
lowed to go ahead and damn as hard
as it could, without concealment or
mitigation on the part of the assistant
investigators.
Wherefore, it w’as not the prudent
part of guilt to employ additional In
vestigators.
And now, reverting to the enlight
ened present, what have we on exhi
bition?
Not singling out the Frank trial,
you understand, but in it. as in every
big criminal trial in this country,
where th© accused is able to employ
talented counsel, we have the spec
tacle of two sets of abl lawyers, fight
ing each other with all the resources
of their learning and shrewdness and.
ability.
The life and honor of the accused
may be at stake—the prosecution,
one© committed to its task, will seek
no evidence but w hat will Incriminate
him.
Th© high claims of Justice are at
stake—the defense must permit no
shred of evidence to be presented,
saving only what wdll tend to clear
their client.
And Ho Didn’t Explain Why.
It is no fault of the prosecutor that
this is so.
It is no fault of the lawyers for the
defense.
And as to tho system?
Well, this Is just the opinion of a
layman, you remember. It may b©
that there is a good reason in law
why .the investigator has become a
prosecutor, and is paid as such; and
why the defendant may employ ex
pensive counsel to combat the Inves
tigation — or prosecution — at all
points.
There may be a good reason for
all this.
Only, my friend, th© lawyer, didn't
explain it to me.
$9.00 WRIGHTSVILLE
BEACH
Round trip, August 16. Good 15
days. Through sleepers. Seaboard.
All Norfolk Suits
To Close Out at Two Special Prices
$12.50
Choice of Values Ip to $20
We’re going to give you choice
of any and all Norfolk Suits that
ranged up to $20 at $12.50.
In this range are fancy fabrics
only—and sizes running from 32
to 38.
$17.00
Choice of Values $22.50 to $27.50
We’re going to give you choice
of any and all Norfolk Suits that
ranged from $22.50 to $27.50 at
$17.00.
In this range are fancy fabrics—
blues and blacks—and sizes run
ning up to 38.
Parks=Chambers=Hardwick
Company
37-39 Peachtree
Atlanta, Ga.