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TTTE ATLANTA GEORGIAN AND NEWS.
DEFENSE SLIPS LOAD By
LEO FRANK AS ISSUE
By JAMES B.
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 the
justice ot tne 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 c?
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.
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
ished!
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 character, must now
corroborate the frightful story of Con-
IMPORTANT WITNESSES FOR dffens^istaTE’S sole aim is to
CONVICT. DEFENSE’S 10
NEVIN.
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 shifted a week ago—thai
is, 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, i.iat 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 ia
sue, however, 1 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 will
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 the 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 defendant's
statement. He will make it just be
fore the defense rests its pleading.
Already, this anticipated dramatic
event has cast its shadow before. The
public is looking forward to Frank’s
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 may accept it in part and re
ject it in part; or it may reject it
altogether.
The Jury alone and finally is made
By 0. B. KEELER.
PHILIP (HAMPERS.
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the sole judge of the defendant’s cred
ibility on the stand.
Tells What He Pleases.
The defendant can not be im
peached; he can not be cross-exam
ined; he can not be prompted by his
attorneys. He simply states what he
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 F*rank is one of the few de
fendants in murder cases coming un
der my observation, who ab-'tolutely
refrained from discussing hi» case, in
any phase of it, in advance of his
trial.
Only at the Coroner’^ inquest, where
he was obliged to talk, has he opened
his lips to soeak 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—hut 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
oneft 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, the court and the jury.
It is unlikely that the jlublic
wishes to hear anything quite tu
much as exactly what Frank himseif
lias to say of the charges lodged
against him.
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 gir!
itself!
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’s hor-
EMIL SEL1G.
rible statement surely must have had
by way 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
tight 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 the 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 own 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
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out—and yet 1 have known the de
fense to introduce the defendant the j
first thing, and proceed thereafter to !
the building of a case around his
"tatement.
As this case is so thoroughly a fight
between Conley and Frank -that is, J
between Conley’s evidence and Frank’s
evidence—it will be intensely in
teresting to watch and see how even
tually the jury views the relative
j 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 wili ng to be convinced
—as violent as the presumption may
| be in some Cases—if Frank can con-
| vince them.
Upon Frank’s Statement, therefore,
lit is entirely possible the en ire case
i may turn finally.
To discredit Frank’s statement, to
| be sure, will be his heavy self-interest
land the fact that »t is not upon oath
| and not subject to cross-examina-
I ion.
To discredit Conley’s story, how-
I ever, is his also heavy self-interest
i and the fact that, while his story
I was delivered on oath, his character |
I admittedly is very bad and his nu- j
merous previous sworn statements
admittedly false in many important |
details.
The situation thus set up is about *
as pretty as it could be, from an ab
stract legal standpoint. 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!
Militant Firebugs
! Taunt Government
TERMS TO SUIT
|j Special Cable to The Atlanta Georgian.
[I IjONDUN, Aug 14. Firebrands among
I the young militant suffragettes extended
I their depredations to the Isle of Man
j 1 to-day. Laxey Glen Gardens were de
stroyed by tire, with a loss of $25,000.
The women left placards scattered
| j about t he ruin s taunting the Go\ ern-
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II who have been carrying on an organ*
1 ised campaign of Inqendiaristi
Guaranteed for 20
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August 21. Account IN-
11DIAN SPRINGS CAMP
I MEETING.
SOUTHERN RAILV7AY.
By 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 daily bread. Were the fear of
Ioms 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 rf their
companions fall victim to the perils
of their calling and go back to work
on the same Job a few minutes* later
without ;i 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 dollary 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 witn-
out standing in an awe-struck trance
watching these men scamper around
between heaven and earth as though
they were walking about a place as
safe nS the quiet walk under the shade
trees of Grant Park.
Furnish a Bizarre Feature.
And these men tnake 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 temj le of justice
is nearing completion.
But there is still work to be done
on the dizzy heights of the upper
stories. The men of the building
trades are then* and their interest in
the dramatic court battle that is being
waged within a stone's throw of them
ig as intense us 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 across 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 the forensic clashes
of the counsel.
Dare Death to Watch.
But still then* is not a moment of
the time that the case in in progress
that life and limb are not risked by
these men as they stare into the
courtroom.
They can see Frank as he sits
through hour after hour of his great
ordeal. They can get glimpses of
the faces of his wife and mother, of
the witnesses as they take the stand,
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
I to the pavement a hundred feet below
There in but one explanation for
I their interest. They’ know a man
! fighting for his life In that courtroom
l across tho street.
j And while death may have no ter
rors for them, it has a fascination as
subtle as the stare of a serpent’s eye
I to a birl, as Mtrong as the rivets of
st el with which they earn their live
lihood.
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 wPh
Increasing fervor.
These are the points:
(1) That the prosecution's efforts
are centered on producing evidence
that will convict Leo Frank.
(2) That the efforts of the defense
are devoted to producing evidence
that will 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 news©.(per story about
a great trial, basing It on such an
absurdly simple and obvious observa
tion.
State's Evidence AM Damaging.
That (you say) is something every
body knows.
That (you say) 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 1 heard the State present 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 (ir. turn) evidence that tenu-
©d 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 were
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 Investigation?
Well (von aay). It would be a pretty
kind of defense that would produce
evidence that would hang the de-
fenant. And (you added) Isn’t that
what the State of Georgia pays its
prosecutors for?
For what?
Conviction ?
Or INVESTIGATION?
That v as 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. Rut that is
always the case in important murder
cases, and furthermore, as 1 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:
'Honestly, now—isn’t this system of
criminal prosecution ell wrong?
Oughtn’t the State have investigators
Instead of prosecutors? Why should
the accused have any defending coun
sel. if the State were not prosecuting,
but making a fair and impartial in
vestigation?”
I thought the idea was Highly origi
nal.
I learned something, right away.
The widely-read and learned law
yer informed me. kindly but firmly,
that that was an Original Idea a good
many hundred years ago. That it was
THE original Idea 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 the
flrst 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 the
case was a regular mystery, the in
vestigator for the Grown, or whatever
it was, went Into that case exactly
like a ceititled 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. H©
is paid by the job. Probably, unless
his liver is out of whack, he would
rather see the poor bookkeeper
cleared. Rut he has no Interest in
the matter.
Well, it seems from w’hat the law
yer told me, that was the original
plan of criminal prosecution by the
State.
The State didn’t prosecute. It jint
investigated. If the facts produced by
the investigation warranted a jury in
''slicking” the aecpsed, well and good.
If the evidence warranted the jury in
turning him loose, also well and good.
The accused had no “counsel,” the
way we 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.
Rut it was understood that if the
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 was 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, hut in it. ah in everv
big criminal trial in this country,
where the 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 tho accused
may be at f*take—the prosecution,
once committed to its task, will seek
no evidence but what will incriminate
him.
The high claims of Justice are at
st ik< t u defense must permit rv«
shred of evidence to be presented,
saving only w’hat will tend to clear
their client.
And He Didn’t Explain Why.
ft is no fault of the prosecutor that
this is s»o.
It is no fault of the lawyers for the
defense.
And as to the 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 yaid as such; arid
why the defendant may employ ex
pensive counsel to combat the inve
tigatlon — or prosecution — at all
points.
There may be a good reawn for
all this.
Only, my friend, the lawyer, didn't
explain it to me.
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