Newspaper Page Text
TTEATLTT? SUNDAY A MERIT AN. ATLANTA C,A., SUNDAY. MAY 30. 1«>1 B.
3 D
SAYS FACTS IN CASE DO NOT CONVICT FRANK
Conley Real Slayer, Hooper Alexander Insists, and Gives Evidence He Declares Proves Theory
Continued From Preceding Page.
without a pledge to secrecy, who, all
unasked, had given him $200 that the
bank records and the factory books
show he never had, and never could
have had, took back the gift anfl
promised Instead to “make it all right
Monday.” Th e explanation was writ
ten in with a pen as an appendix to
the typewritten affidavit, and the
long and tedious labors of these
searchers after truth were ended;
they never grilled him any more.
There is the evolution of the story.
If Conley had stuck to it as he told
It then, and as the detectives wrote
It down, it would still have been as
demonstrably false as it was when af
terwards, to their amazement, in the
presence of the jury, his luxuriant
and unpruned imagination added new
and undreamed of touches to his now
untutored fancy.
The Relative Importance of Incon-
cistencies.
Before analyzing the story as he
Anally told It on the witness stand.
I invite the attention of thoughtful
seekers after truth to the fact that
the inconsistency between his tesi-
mony and his first three statements
presents a very different situation
from the inconsistency between his
testimony with his final statement.
There is a vital distinction between
these inconsistencies.
While it might be difficult to be-
lieve that Conley, or any other wit
ness under like conditions, could have
lied without limit in denial of his own
complicity In the crime and corvnec-
ton with it, and still tell the truth at
the eqd, such a thing is r\ot impossi
ble. A candid believer in Frank’s
guilt might candidly concede that the
stories of May 18, May 24 and May 28
were false, and yet with candor argue,
and with some plausibility, that they
do not necessarily make it impossible
for his final story to be true. It might
be fairly argued, though it would
strain credulity to believe It, that
while he lied at first in order to hide
his own complicity, he finally recant
ed on the witness stand, made a clean
breast of everything, and sought
safety in truth.
It is not the mere fact that he lied
In these statements, that makes his
story unbelievable and impossible.
That conflict is open to an explana
tion that, however difficult to accept,
may be fairly argued; it can fairly be
said that Conley was Implicated in
the crime; that he was in fact in
danger of being adjudged a criminal;
that he was ignorant and afraid, and
that he lied at first to save himself;
that at the last, however, he owned
up. abandoned the refuge of false
hood, and told the truth. We might
not very readily accept such an ex
planation, but it Is possible.
On the 29th of May he told every
thing that could involve himself. He
reversed his former attitude. No
longer seeking safety in falsehood, he
sought it in truth. He met the de
mands of the officers, and, under their
arguments and persuasions, accepted
the teaching that the truth was his
surest refuge. That is the necessary
theory of those who believe him. In
deed. he telis us himself that all the
lies that were in the first three state
ments were told because he was
afraid to have it known that he saw
the body, or touched it, or even knew
of the murder. Very well. We may
be skeptical as to this explanation, we
may receive it with incredulity, but
an argument based on such a theory
can not be rejected as impossible; it
follows rational lines.
Very different was the situation on
and after the 29th of May. In the
statement that day made, he told
everything that could hurt him or
bring him into suspicion; he told the
things that he flfeys he had hitherto
kept back out of fear. After he re
solved to tell the truth, and It is the
theory of the State that he did re
solve to tell the truth on the 29th of
May and that his statement of that
date was the fruitage of the resolu
tion, there was no longer any motive
for lving. When he told of seeing and
touching and hiding the body, he had
taken away all possible motive for
any further falsehood, and had made
it impossible to explain any further
falsehood. Whatever it had been pre-.
viously to his interest to conceal, he
confessed on that day, and he con
fessed in substance to the same
things that he told the jury. After he
had resolved to do that, there was
nothing else that could make/ the case
against him either worse or better.
The discrepancies that followed in his
testimony did not make him any more
guilty or any less guilty, or put him in
any more cr any les»s danger, and
even his limited intelligence was
obliged to teach him that. So far as
concerned their bearings on his for
tunes, the story of the 29th of May
and his testimony on the stand were
exactly the same, no matter what dif
ferences in detail there may have
been in them Indeed, so far as their
points of variance are concerned, the
fwo stories are the same in their ef
fect on the guilt ot innocence <?f
Frank himself.
The admitted falsity of th P first
three statements, then, are of rela
tively small importance. However
^jnuch they may discredit Conley as
a liar in the minds of those who do
not carefully search out motives,
these falsehoods are capable of an
explanation that might leave it pos
sible for Conley to have told the
truth ig his testimony In spite of their
falsity.
But on the 29th of May he told
-everything that could hurt him. and
everything that could hurt Frank.
If. after he did that, he told a story,
the same in substance, but different
in vital particulars, some other ex
planation must be looked for than
that which is relied on to explain
away the falsity of hm first three
statements.
There is an explanation—a clear,
logical and certain explanation. I do
not mean, now, that Uie explanation
I am about to point out. applies to
every variation between his affidavits
and his testimony, for ther e were
variations which I shall specially
consider, that were the results, some
of design, and some of necessity.
What I am proposing to discuss is
the verv great number of varia
tions in'matters that, while substan
tial in character, were in themselves
unimportant as affecting the guilt or
innocence either of himself or Frank,
though tremendously important in
their bearing on the question of
whether the story was true or false.
Variations of this sort becom ft im
portant by reason of the very fact
that if the story was true, it was
immaterial which way they hap-
pened.
I can make my point clearer by an
illustration. In the story of May 29
the detectives tell us that h e said
he wrapped the body up In a cro
cus sack. On th e witness stand he
wrapped it up in a piece of bed tick
ing which he described minutely.
Now, if h e wrapped it up at all—
if the story was true, it is an utterly
immaterial question, in Itself, which
he wrapped It in; except that, as a
matter of fact, he could not have
tied up that kind of bundle with ei
ther, and I am not at this point
discussing the impossibilities, but the
inconsistencies of the story.
The significance of this variance
derives its importance from the very
fact of its immateriality. Ther e was
no possible motive for saying the first
time that it was a crocus sack rather
than bed ticking; but that is what he
said. Why, then, did he change it
and say it was bed ticking?
Except In the particular matters of
variance which I have promised to,
and will, explain later, and in which
he made changes that he had to make
to make the story “fft,” Conley ex
pected and intended,to testify exactly
as he had confessed on May 29. His
story had satisfied the detectives,
and, in their satisfaction, he saw his
safety. In their zeal to vindicate the
theories to which they were publicly
committed, they were blind to its
monstrous impossibility, and Conley
had not intelligence enough to know
that Its impossibility was visible.
What he did know was that his
story of May 29 “fit” to their satis
faction. He knew that after that story
they looked kindly on the repentant
sinner. They even showed their fa
vor in their treatment of him. While
they say that in the beginning he
was very “dirty.” and the Solicitor
constantly refers to him as “lousy,”
he knew that now he was well fed and
fat; his cup was, according to his
standard, fairly running over; he was
clean and well clothed, and he had
no concern about a short term of im
prisonment as an accessory after the
fact. He was even a sort of hero,
and obviously so regarded himself.
He had even appeared in the extras
which he so constqpitly read, as hav
ing bluffed Frank out of an Interview,
in which the detectives, as he saw it,
were to be present as his friends and
backers.
Subject to certain variances which
he had perceived that he would be
obliged to make In the story, and
which I shall discuss hereafter, he
was Just as confident as the detec
tives were, that he was going to tell
the same story on the witness stand
that he had told on the 29th. If he
did not do so, but made such changes
as I am now speaking of, and of
which there were many, the question
is: Why? And that is a question
that must be met and answered by
both sides of this issue. The ans
wer is absolutely certain; HE
FORGOT.
The whole secret of the differ
ences In the two stories is in that
fact, and I defy any man to find any
other explanation.
Where a thing really happens and
the knowledge of it reaches the mind
through the primary senses of touch
or sight, the witness will tell sub
stantially the same thing about It
every time. If it was a black horse
that broke into the cornfield, he can
not make a mistake and say that it
was a white horse. He tells that
part involuntarily; It tells Itself.
Where it never happened at all,
where it was never perceived by the
senses, but was a mere fabrication
of the brain, conceived deliberately
in the telling of a long and Involved
falsehood, there is nothing concrete
to aid the memory. The mental op
eration involved in the second tell
ing is not an involuntary recalling of
a picture actually seen, but is a con
scious effort to repeat, not what he
saw, but what he said he saw.
In all such cases there is a per
centage of variations bound to de
velop; that is as certain as the vital
statistics of the Insurance tables.
“A liar hath need to have a long
memory.”
His story of May 29 was compli
cated and involved, and entirely be
yond the capacity of his menial
standards. as long as there were
none to doubt It; as long as the de
tectives were his sole audience, who
themselves say, “Anything in his
story that looked to be out of place
we told him wouldn't do;” as long as
they were there to tell him why it
would not “fit;” as long as it was
consistent with what they were
hunting for and hoping to find; as
long as it vindicated their theories
and promises, Ahe critical examina
tion they gave it kept him in bounds:
but the problem that now confronts
us is not to see that it fits, but if It
fits.
Analysis of Conley's Story.
1. Its generally improbable and un
reasonable character.
Before considering the story in de
tail, I submit that any candid man,
not wholly predisposed to believe in
Conley’s truth, is obliged to be im
pressed with the utterly unreasona
ble and improbable character of what
he told, when it is considered as a
whole.
Here is a man supposed by the
community at large, so far as they
are acquainted with him, to be of
singularly gentle and amiable dispo
sition, modest and retiring—almost
timid. Working at a small salary of
$150 a month, he is diligent and ac
curate in the discharge of his duties,
even deferential to his employees,
though little acquainted among them.
I do not overlook the fact that in
the rebuttal evidence for the State a
number of girls were called who were
disposed to suggest that Frank had
given some evidence of being lecher
ous. T hope the board will not over
look the fact, easily apparent from
the record, that in the rebuttal tes
timony there were a large number of
witnesses who manifestly testified
out of a very zealous belief that
Frank was guilty and should be pun
ished, and who manifestly overesti
mated, in their minds, matters that
were not really Important. The
things that these young ladies said
were hardly sufficient to warrant a
suspicion of the character indicated.
There were several young women
witnesses in the factory who testified
i* chief for the State. I can not
comment on the testimony of all of
them, but Miss Hicks said that in five
years she had never seen Frank
speak to any of the girls and thot
he had spoken to her but three times,
one of them being a deferential lift
ing of his hat when he met her on the
street. She said that he only knew
her face, and added that she never
®hw F**ank sneak to Mary Phagan or
Marv Phagan sneak to him.
Helen Ferguson, a witness in chief
for the State, whose testimony was
stroreTy relied on to create one of
the flimsy nieces of circumstantial
evidence, said that she did not be
lieve Frank even knew her name. T
mention these farts because they tend
to discredit the Idea. dWventlv sug
gested. that FranV nought acquaint
ance among the s-lrls.
He was manifectlv of a hiehlv npr-
"•o’is temoerament. unusuallv suscep
tible to the suffering of others A
young giri was on one occasion killed
or injured In a street car accident,
and Frank in some way came in con
tact with the matter. He was so un
strung by It as hardly to be able to
work. If anything went wrong in the
daily routine of the factory, or any
thing like a rebuke came from a supe
rior, it agitated him extremely. One
of the State’s witnesses said that he
had s*een him rubbing his hands a
thousand times. Conley unquestion
ably had seen the same thing. Cer
tainly he was a man of at least aver
age Intelligence. It may be safely
said that he was above the average in
intelligence.
Nothing in the record, except Con
ley’s testimony, and Dalton’s suggest
ed that he ever showed anything like
familiarity with other people, or was
ever guilty* of -any lowering of his
personal dignity. and much of the
State’s testimony went to prove that
he at all times maintained his dig
nity.
Conley, for an evident purpose, and
to make his story “fit,” represents
Frank as in the habit of indulging in
very degraded practices. To prove it
the State called a witness named
Dalton, of whom eleven witnesses
from Walton and Gwinnett Counties
testified that they would not believe
him on his oath. He himself admit
ted that he had been indicted as a
common thief four or five times, and
sentenced.
The very storv that he undertook to
tell was intended to associate himself
with happenings of the most un
speakable and degraded sort. Conley
says that on this particular occasion
he himself was selected as Frank’s
intimate friend and confident, and
af»ks us to believe that Frapk made
of him an unneeded witness to some
premeditated purpose to assail the
virtue of a young girl for whose com
ing he had arranged in advance;
though we know as a fact that he
could not even have told that she was
coming; that when she came Frank
was so frwept away by his passion
that, upon her refusal to yield to his*
lust, he struck her Into insensibility
with his fist, and thereafter, in a mad
frenzy, or to conceal his first attack,
deliberately strangled her to death;
that his intelligence was so nearly on
a level with Conley’s that he told the
latter to bring out the dead body, and
pretended to him that he had done
nothing more than strike her. though
tho cord whs even then around her
neck; that as Conley was bringing
out the body Frank cursed him. and
that, after It was concealed, he in
dulged in Jocular hilarity and the
most Intimate familiarity with his ac
complice. In the whole story there
were so manv things utterly unbe
llevable in the light of ordinary ex
perience. that it Is impossible to set
them out. I call attention here to but
one of them, and because it was so
manifestly purposeless.
Frank had asked Conley, according
to Conley’s story, to come there that
day and “watch” for him. What
could have been the purpose of the
watching? There could be no ration
al conjecture except that it was to
prevent interruption or give warning
that Interruption was Imminent; yet
Conley did neither. From 11:50 until
12:10, during which interval, accord
ing to Conley's storv, the murder
took place, two people came in and
went up to the office without inter
ruption by Conley, and with no effort
on his part even to give Frank warn
ing—one of them jyst before, and the
other just after Mary Phagan came.
Manifestly there was nothing for
the watcher to do In the way of
jyatch’ g; but in his testimony he
says that his agje°ment with Frank
was that as soon as the expected visi
tor Tame Frank would stamp his fn^t
in order, that Conley might lock the
door an<j( shut out interruption, and
that when she was ready to go he
would whistle for Conlev to unlock
the door and come upstairs. We
know, as a matter of fact, that Miss
Hattie Hall was there at 11:50 and
that she had gone at 12:05. although
Conley says not one word about her
going. He not only says that he did
not do anvthing to prei'ent interfer
ence, but that he heard Mary Phagan
scream, and that, after that, he saw
Monteen Stover come in and go up,
and never lifted a hand to give warn
ing. According to Conley, the signal
to lock the. door was not given until
long after the girl had come and the
murder had been perpetrated, hnd at
least one other visitor had appeared
upon the scene, and had been allowed
to come In without hindrance.
Even the poor service of locking
the door was worse than unnecessary.
Frank carrier the keys. Why could
Frank not lock the door himself? Why
did he need a witness to his shame?
Whv did he want the dobr unlocked?
Conley says his instructions were,
when Frank whistled to unlock the
| door arid come upstairs as if to bor
row money. How would a person
look when he was coming up as if to
j borrow money? Why would he want
I the lady to suppose that Conley was
I seeking a loan. How could she tell
by his looks that that was the object
of his visit? The story is just one
of those obvious falsehoods that an
ignorant man like Conley would in
vent.
Unnecessary as it was to lock the
door by proxy, the question is
unavoidable: If Conley’s story is
j true, why did he not lock
it? Why did not Frank stamp?
The girl came before 12:05. The
blow which we are asked to believe
produced unconsciousness, and which
certainly, if the story Is true, pro
duced the scream, must have taken
place, if at all, very close to 12
o’clock. Mrs. White was there at
12:30 and it was impossible for her
to have gotten in unless she came be
fore the door was locked. The So
licitor says in his argument that she
came at 12:35. When she came,
Frank was in his office attending to
office work, and if Conley tells the
truth, the door had not yet been
locked. The locking story Is im
probable. I shall demonstrate here
after that the unlocking was impos
sible. V
We are seriously asked to believe
that Frank undertook the contemplat
ed wrong, without having the door
fastened, and knowing that visitors
were liable to arrive at any moment,
and were in fact arriving constant-
Jy. We are asked to believe this ab
surd story as proof that the person
to whom the notes pointed as the
murderer was not the guilty wretch,
and to believe it on his own testi
mony.
2. The Conflict With the Affidavit.
I have already pointed out that
when Conlev departed on the witness
stand from his affidavit of May 29. the
variance was, in the main, due to the
certain truth that even an intelli
gent man can not tell an involved lie
and afterward repeat it. When one
who has manufactured a story tells
it afterward and varies in certain
kinds of details, the variance is a
matter of the highest importance. It
tends to prove that the story was
manufactured. I am not speaking of
those immaterial variations that a
partisan advocate loves to dwell on
before jury and ring th e changes
on; but which rather tend to prove
a story true than false. I am talk
ing of a more important kind of va
riance, those \v*hich ar^of such char
acter that a man whb told the truth
at one time would be obliged to tell
substantially the same thing over
again, because it was the’ fact, and
because it could not be stated differ
ently, except as the result of forget
ting his story or changing It with a
purpose.
On pages 82 and 83 of the brief
will be found some thirty very ma
terial points of difference between
the jtory of the 29th of May and the
story told on the witness stand.
These were brought out on cross-ex
amination of the detectives. If the
board cares to inquire further, they
can find it In the testimony as many
more of that sort as they need. They
are all substantial matters; they can
not be brushed aside or their impor
tance minimized by saying that Con
ley is admitted to have been lying on
the 29th of May. It never was ad
mitted that he lied then. That theory
will not work. I have alreadv ex
plained that while his departures in
his testimony from the earlier stories
are susceptible of almost rational ex
planation, consistent with the Idea
that he told the truth at last; that
his variances from the story of the
29th can not be explained that way.
I shall invite your attention to just
a few of those points as typical of
different classes of lies, depending
upon different principles.
1. What became of the meshbag was
a vitally Important question. On the
29th of May he said nothing about
seeing the meshbag. He denied that
he ever saw it. On the stand he gave
an elaborate statement of seeing it on
Frank’s desk and of Frank’s hiding it
in the safe. There was no possible
motive for him to lie about it on the
29th of May, for he had told every
thing then that hurt himself. There
ar^ a great many contradictions of
the sort of which this is typical.
These are pure Inventions by ^ wit
ness whefhas found himself a hero in
the estimation of auditors who seem
to him prepared to believe anything
he tells. They are relatively of small
importance in testing Conley’s story,
and for the teason that they deal with
a very piaterial matter, a matter that
tended to aggravate Frank’s guilt.
Because this was so, I attach little
relative importance to them in the
face of so many other flagrant, though
disregarded, falsehoods.
2. I select now a variance of a dif
ferent type. On May 29 he did not
sav a word about Frank’s wanting
him to burn the body and about his
refusal to do so. On the witness
stand he told an elaborate story to
that effect. Why? That was neither
forgetfulness nor invention. It was
the result of suggestion. In order to
understand that this is* true, the
board must be informed that on the
29th of May the detectives did their
utmost to make him say that the
plan was to burn the body. It was
f ne of their numerous theories that
hey tried so diligently to make him
sustain them in. Mark you! This
denial of the burning story was told
after he claimed to have abandoned
his earlier policy of seeking safety in
denial, and after he thought he had
found safety in telling whatever the
detectives wanted him to tell; and
yet, to the suggestive questioning of
the detectives that day, he calmly as
sured them that nothing of the kind
had happened; that Frank had never
made such a suggestion. But the
idea found lodgment in his head. It
grew and developed, and, at the trial,
he told an elaborate story about that
Whether the suggestion had by that
time so ripened in his mind that he
rt‘ally believed it himself, or whether
he adopted it as a good suggestion,
and. knowing the great interest that
existed on the subject, deliberately
worked it out in the interest of add
ing to the glare of his reputation as a
hero, is immaterial. The fact stares
us In the face that we are ab^ut to
put a man to death or. the testimony
of a witness whom It is essentially
dangerous to believe, because no man
can be sure now that, if he testified
again, he would not tell a wholly dif
ferent story.
3. Take another of the numerous
discrepancies that belong to this
class of lies developing out of sug
gestion. On the witness stand he told
of hearing the victim scream, and. in
so doing, told a thing that was im
possible. He had never told that be
fore. It was, like the story of burning
the body, the result of suggestion. On
the 29th of May the detectives asked
him about that, and although he pre
tends, and the prosecution asks us to
believe, that on the 29th he had
abandoned all thought of further con
cealment, he denied it. There could
not have been at that time any mo
tive for concealment on this subject.
But his story had given him notorie
ty. He was talking to a thronging
multitude who looked upon him with
evident admiration, as a hero; the
extras were bringing out every hour
big headlines about his marvelous
revelations; he was reading about
himself in them every night, and
there was no apparent limit to cred
ulity. The screaming was fine melo
drama. The detectives had tried to
make him sav it and were disap
pointed when he didn’t. Now was his
chance and be threw It In for good
measure.
4. I purpose row to call attention to
a different class of variance, one
which, when fully understood, will be
recognized as being such a master-
pieqe of cunning as to make us won
der now such a mind as Conley’s
could have ever seen that it was
needed, or worked it out without help.
Its full significance will not be per
ceived in the outset.
On May 29 Conley tells us that he
went, at Frank’s command, and
wrapped up tho body in a ctocus
sack; he put it on his shoulder and
started with it. and that when he got
as far as the dressing room it slipped
off his shoulder and fell. On the
stand he said that after he had tied
up the body in tly* bed ticking he
tried to put it on his shoulder and
was not strong enough. Instead of
putting it on his shoulder, then, he
ran his arm through the loop of the
bundle and carried it that way, and
when he got to the dressing room he
let it fall. (Just why he did not put
the body down Instead of letting it
fall is not clear.)
Now. I Invite thoughtful men to
ask themselves why that change was
made. It is. of course, a flat contra
diction. But why? One man might
say that it was a case of forgetting
his first lie and that the thing never
reallv happened at all. Another might
say that the affidavit was false but
that he repented afterward and told
the truth; thougt^ii. is no easy to un
dersand why he should have told a
lie of that particular sort in the flr.it
instance. But let every man ask him
self, What is the explanation of that
change? Then listen to what really
caused It.
On the 29th of May Conley told the
detectives that when he got down to
the basement he and Frank took the
body off the elevator together and
laid it on the ground; that Frank
then went up the ladder to watch
and see If anybody was coming. (Bv
the way, why didn’t he lock the front
door? Then, at Frank’s command, "I
picked It up and put it on my shoul
der again, and I taken her back there
and taken the cloth from around her
and taken her hat and shoes and
brought them down and untied the
cloth and brought them back and
throwed them on the trashplle in
front of the furnace, and Mr. Frank
was standing at the trap door at the
head of the ladder.”
In his testimony he tells us that
when they got to the basement they
took the body ou of the elevaor. “and
I opened the cloth and rolled her out
there on the floor,” and says not a
word about taking the body back to
the sawdust pile on his shoulder or
any other way. Then he tells us that
he" asked Frank what he was to do
with the hat and the slippers and the
ribbon, and Frank told him to leave
them there (1. e., by the elevator)
but he took them and pitched them
on the trashplle.
This change in the story was not
Invented to explain why the bed
ticking was not found on the trash-
pile, flrhere the hat and the shoes
were found, though certainly that
question needs to be answered now.
Neither was it for the purpose of
getting rid of the fatal fact that one
who could not carry the body on his
shoulders for 40 feet on the second
floor without dropping it. could easily
carry it that way in the basement 136
feet, though the fact also had to be
reconciled. The imperative necessity
which made this change unavoidable
grew out of something that is not ap
parent at all in his story.
After the 29th of May, and before
the trial, the doctors had very care
fully considered the condition of the
body and expressed an opinion. Be
fore Conley was ever put on the
stand Dr. Hurt had testified, in an
swer to the questions of the defense,
that the condition of the body, its
being so black and dirty as to make
it impossible at first to tell whether
it was the body of a white girl at all,
the scratches and punctures on the
face, the dirt In the mouth and eyes
showed that It had been dragged over
dirt and cinders. The floor was cov
ered with these materials.
After Dr. Hurt so testified on the
stand there was an interval of some
days and nights before Conley was
put up. Manifestly, if he carried that
body on his shoulder aealn in the
basement the evidence of the drag
ging was a thing that would not “fit.’’
Manifestly, also, he had ample time
and 9>pportunity to revise the story
and make it “fit.” We can not but
wonder that a man of his low order
of intelligence could have perceived
the necessity for the change. More
over. note how this strengthened the
theory against Frank. If Conley left
the body at the elevator, it would be
an easy Inference that Frank went
hack in the afternoon and did the
dragging.
But to give verisimilitude to the
story, he must become too weak to
shoulder 125 pounds; and so to make It
“fit” all around, instead of shoulder
ing the body upstairs and subse
quently dropping it from his shoulder,
he ties up the cloth like a Monday
waah and carried It with his arm
through the loop; and men believe a
thing like that, told by such a crea
ture, under such conditions, and under
the obvious necessity to save his own
neck.
Even in telling that he left the body
at the elevator instead of carrying it
back to the sawdust pile, as he had
said on the 29th, he dropped out an
expression in his testimony that
shows that he never really had in hts
mind a concept of the body lying by
the elevator, but that the locus of the
corpse in his mind’s eye was back at
the sawdust pile, where he really put
it.
Let me give one other illustration
of this class of change in the details
of the story. There are plenty of them
of all classes.
5. On May 29 he reasserted .what
had been said in his affidavit of May
29 about the writing of the notes. He
said he wrote on the white-ruled pa
per at Frank's dictation—wrote it
three times—Frank, after careful ex
amination, selecting the one that suit
ed his purpose. He did not write the
second note then at all. According
to the story he then told, there follow
ed, after this writing, a long detailed
account of happenings and conversa
tions (things, by the way, that, rea
sonably considered, would have taken
the full 34 minutes or more that he
says they were there, from 12:56 to
1:30). Jdfet before the time came to
separate, he saw Frank go to his desk
and “take out a brownish looking
scratch pad.” (Do not forget, by the
way. that it was a pad.) He saw Frank
start to write on it. He even saw’
that the first letter was “M,” but
Frank became suddenly suspicious of
his trusted friend, shut the pad up,
looked at Conley and told him he
could go. On the witness stand Conley
said that he not only wrote the first
note and wrote it three times, but that
he wrote the other note on the brown
paper also.
Now, why was that change made? I
have no evidence on that subject. I
rely on conjecture, but I will risk my
reputation as a man of reason on the
proi>o8ition that, if the Pardon Board
will investigate that matter to the
bottom, and insist on knowing how
and when Conley owned up to the
writing of the second note, and why,
and all the details about it, they will
be absolutely convinced that the
change resulted from Conley’s becom
ing convinced that evidence could be
produced outside of himself, and
would be produced, to prove that he
did write the second note. He con
tinued to deny it after the 29th of May.
Was his change made on the witness
stand, or was it before? QJd the de
tectives know it was to be made? If
so, why?
The change was made deliberately
to make his story “fit,” In a full and
intelligent knowledge that it would
discredit the witness and be danger
ous to his life if, on the witness stand,
he told a lie like that, of which proof
could be brought from outside sources.
And I call upon the board to probe
that matter; It is of the most serious
importance.
3. The Story Impossible.
There are so many things in Con
ley's story that are clearly impossible,
in the light of testimony of other wit
nesses for the State, that I can only
select a few, and I must treat them
briefly.
1. Darley left the pencil factory at
9:40 in company with Frank. I pre
sume there can be no doubt about
that. At that time Conley had al
ready left, according to his story, to
visit his mother at the laundry, and
was to wait for Frank at Nelson
Htreet after he got back from the
laundry. H ft made his visit and got
back to Nelson street between 10
and 10:30. He returned with Frank
at 11 o’clock, concealed himself In
the dark lumber room on the first
floor, and took up his watch. Accord
ing to his story, after his return from
Montag’s he saw several people come
down the steps and leave. Among
them was Mr. Darley. He fixes the
time at 11:30, after the visit of “Peg-
leg," and Just before Holloway left.
Is it necessary' to comment on that?
Can it possibly be explained? Can
rational men ignore a lie like that?
He never saw Darley come down at
all. Darley came down with Frank
at 9:40, and Conley had left before
that time.
2. 1 propose two questions, and I
ask that they be candidly considered:
If Conley tells the truth—
(a) How did Mrs. White get in?
(b) How did she get out?
Conley says that when the lady
came whom Frank was expecting,
Frank was to signal by stamping and
Conley was to lock the door. At a
time when everybody else was gone
and therefore after 11:50, and after
Miss Hattie Hall had subsequently
gone, he saw’ Quinn come in, go up
and come down. Then he saw Mary
Phagan go up. This must have been
before 12:05. There was no stamp
ing, but he heard her and Frank go
back to the metal room. Remember
that he was near the front door
downstairs, shut off by partitions
from the rear and the doorway from
upstairs. The metal room was up
stairs at the back of a buildirfg 200
feet long, a-nd shut off from the front
by a partition, and yet he heard the
girl scream, and “then I didn’t hear
any more.” Then he saw Monteen
Stover come in, go up, come down and,
leave. Then he heard a tip-toeing
upstairs, first forward, then backward,
to the metal roomf then he went to
sleep. After all this Frank stamped
for him to lock the door to prevent
interruption, and he did lock It. I
may not pause to comment on the
unreasonableness of the story that
Frank would hav e delayed so long the
signal to lock. It ifl too obvious for
comment.
But how did Mrs. White get In?
Manifestly, as she came at 12:30, ac
cording to her statement, and at 12:35
according to the Solicitor’s, Frank de
layed fpr half an hour before shut
ting out visitors, and during that
time completed the murder by delib
erately strangling the victim. No
other theory can possibly explain
Mrs. White's getting in, and that la
a very unreasonable theory. But
how did she get out? There was a
delay of at least fifteen minutes, ac
cording to Conley, between the time
he locked the door and the time he
got th e signal to unlock it. If I were
seizing upon ordinary contradictions
and ringing the changes on them, I
should dwell here upon the fact that
he first says, in the course of the
cross-examination, that he w'ent up
stairs between the tim e he locked the
door and the time he unlocked it.
In a very little w’hile he said he un
locked the door first and then went
upstairs. Finding himself caught in
the net of that sort of self-contradic
tion, he settled down deliberately'to
this proposition: “As soon as he
whistled I ynlocked the door and
went upstairs.” In the presence of so
many such contradictions, I can not
waste time commenting on that. But
it emphasizes the fact that his story,
as deliberately revised, was that there
was no interval of time between his
unlocking the door and his goin ••■»-
stairs.
When he got upstairs Frank was
at the head of the steps. The evi
dence is that he stayed there. He
sent Conley back to the metal room
with instructions to bring the body
forward. If Mrs. White came down,
then she w'ould have seen Frank at
the head of the steps, and If Conley
brought the body out, as ordered, she
would have seen that. Indeed, at al
most the Identical time fixed *by Con
ley for those incidents, Frank had Just
warned Mrs. White to come down.
Did he want her to come dowm and see
him there? He had told Conley to
bring the body forward. Did he want
her to see that? How did she get out?
If she went out after Conley came up
stairs, she would have seen this per
formance. If she went out before
Conley came upstairs, the door was
locked. If she went by Conley before
the whistle, she would have had to
unlock the door herself; but If that
happened, how could it have been un
locked by Colley when the signal
came. We know Mrs. White told the
truth. Therefore, Conley did-not.
The reconcilement of these facts
must present grave questions. No
theory can be invented that will be at
all reasonable to explain either her
getting in or her getting out, consis
tently with Conley’s story. The only
one that can possibly be invented will
not “fit.” and when It is advanced, its
want of fitness will be mad© to ap
pear.
4. When Did Mary Phagan Come?
In respect to th^tlme of Mary Pha-
gan’s arrival, the State is faced by a
serious dilemyna. Conley's story not
only has fier there before Monteen
Stover, but has the murder consum
mated before that time. On the other
hand, the evidence of Monteen Stover,
who is highly commended by the So
licitor in argument, is that she herself
got there at 12:05. Epps, who Is equal
ly commended by the Solicitor, says
that Mary’s car didn’t get to Forsyth
street until after that time. Of course,
the prosecution will answer that
either Epps or Stover was wrong, and
probably both. In other words, we are
now asked not only to believe Conley
a story he is telling to save his own
neck, in preference to all the -wit
nesses for the defense, but we must
even reject these two commended wit
nesses for the State. That seems to
be going pretty far.
I think Mrs. White’s story is true.
She says she left there at 11:50 and
left Miss Hattie Hall there at work.
Is that to be denied now by the State?
I hope not. Graham and TJllander
w’ere there when she came, and she
talked there after that for fifteen min
utes with Mr. White. I think Graham
and Tillander were slightly mistaken
in their time. They say they got there
at 11:40. If that is correct, Mrs. White
could not have left till 12. She says
she left about ten minutes before that
-—at 11:50—ajid that seems reasona
ble. Miss Hattie Hall could hardly
have closed up her work and got away
much before 12, if any. Say she left
at 11:55. Conley says Quinn came in
before Mary Phagan, and that Mon
teen Stover came afterward. These
things can not be made to "fit.” They
are Impossible. Now, what is the ex
planation? Mine is that Conley’s
whole story was a fabrication, built
up from the necessity that grew out of
discovery that he was the author of
the murder notes. What is the State’s
explanation?
In his published argument the So
licitor makes no effort at all to recon
cile these Impossibilities. He makes
no reference to them. On their face
they deserve to be considered. The
girl couldn’t possibly have got there
before 12:05. If she did, it is incon
ceivable that the Incidents narrated
by Conley could have happened in the
fifteen minutes between Mrs. White’s
departure and Monteen Stover’s arri
val.
These problems confronted the
prosecution at the trial. They were
in evidence when the fcState closed In
chief. The defense was then intro
ducing testimony for a week or more.
When the defense closed, the State
put In no evidence to rebut its own
evidence In chief, but it did put in
some testimony that could not have
had any purpose except to substitute
a conjecture that there was or may
have been an error in the clocks.
One Kendrick testified that he was
once upon a time night watchman at
the factory, and that at that time the
clock varied from three to five min
utes. He does not tell us when this
was, nor which way the clock varied,
nor in how long a time, nor which
clock. On cross-examination w’hen
he was pressed to say which way the
variation was, he saitr it varied both
ways.
It is not easy to be patient in com
menting on that sort of testimony. It
is even less easy to believe. Here
W’ere two clocks by which 200 people
registered their time and drew their
pay. They were side by side. Any
want of accuracy in them would have
provoked a revolt, and especially if
they did not agree. There w'ould have
been a hundred witnesses. It would
bo known exactly which clock varied,
which way, and w’hen; and we would
not be asked, as we are asked now, to
hang a man on a conjecture, in the
teeth of the State's testimony, and
without being even told which way
the conjecture Jumps.
Conley wns a more definite witness
for the State on the clock question
than Kendrick. Accustomed as he
was to supplying all needed facts to
meet emergencies, he came out about
it, without dodging like Kendrick did,
and tells us flat-footed that the right-
hand clock was ten minutes fast. If
that is so, and as Conley’s testimony
is always credited when there is a
conflict, the question recurs—which
clock did Monteen Stover look at? If
she looked at the clock that was
right, It makes r.o difference what
ever abotit the wrong one. If she
looked at the clock that was wrong
the dilemma of the State is made
worse; for, instead of getting there
Iwn minutes before Mary Phagan’s
car got to Forsyth street, Fhe got
there at 11:55, and the consequence
follows that, if Conley told the truth,
Mary Phagan’s murder was accom
plished at the pencil factory twelve
minutes before her car reached For
syth street. 1.016 feet away.
Clearly the clock theory won’t ex
plain It. Conley might be prevailed
on to say yet that the clock was ten
minutes slow. Tn that event Monteen
Stover reached the factory at 12:15,
and it still wouldn’t do; for If Mary
Phagan reached Forsyth street at
T2:07, $nd you allow five minutes to
put her at the factory door (1,016
feet), and one minute to go upstairs
and into the office (about 140 feet),
and then give her time to get her pay-
envelope and start off, and come
back, and ask about the metal, you’ve
still got Monteen Stover on your
hands before Frank fas had time to
take Mary back 200 feet to the metal
room and go through the prelimina
ries that must have preceded the
scream.
And even If she had gotten back
there, surely Monteen Stover, up
stairs, could have heard the scream
as well as Conley downstairs. There
is no escape from the logic of these
facts. Conley’s story w’as an utter
fabrication. She came down from the
office and Into the dark lumber room
where he was lurking and there he
saw her Just what happened or how,
I can not even guess in detail, but
there or somewhere else, he attacked
her, and it was Conley and no one
else who strangled her innocent
young life.
5. The Interruption by Visitor*.
By all the standards of human
knowledge, the visit of Miss Corinthia
Hall and Mrs Emma Freeman took
place before 12 o’clock. If they w’ere
not out and gone before 11:50, the
impossibility of the account of the
actual murder, as told by Conley, is
even more certain. They left before
Mrs. White left, most probably about
11:45, or a few minutes later. There
are a dozen witnesses to that effect.
In his argument the Solicitor himself
says they left Ju9t about the time I
state. He even made it the basis of
his argument on the subject of
Quinn’s visit. In order to make this
clear, I must, by way of Inducement,
refer to the testimony of one witness
for the defense Quinn testified that
he dropped In that day about 12:20,
but stayed but a minute or two and
then left, finding Frank at work at his
books. The prosecution w’ould have
denied that Quinn w’as there at all,
and claimed that he lied entirely, but
they couldn’t do that because the im
peccable Conley had said that Quinn
was there just before Mary Phagan.
So the prosecution undertook to prove
that Quinn’s visit was before 12. The
only way they could do it was by
contending that Miss Corinthia HaU
and Mrs. Freeman left before 12, be
cause they claimed to have met Quinp
afterw’ard at a restaurant, and he
told them he had been up to see
Frank.
While these matters are referred to
as connected with evidence for the
defense. I am within my promise, be
cause I get them from the printed
volume of the Solicitor’s argument.
He is authority for the fact that these
ladles came and left before 12
o’clock. That, therefore, is a ques-
tiQn about which there can be no
doubt.
In Conley’s account of what hap
pened he fixes the time of his coming
upstairs as very shortly before 1
o’clock. After he had been back, at
Frank’s command, and found the
dead body, he came forward to the
head of the steps where Frank was
waiting for him, and It was 12:56.
That hour he fixed as* early as May
24. and he always stuck to it. After
that he says they took the body down
and concealed it and came back and
sat down In the office to arrange for
a subsequent program Then It was
that Frank exclaimed, looking out to
ward the stairway: “My God, here Is
Emma Clarke and Corinthio Hall,”
and proceeded to hide Conely In the
w’ardrobe, during a visit that Conley
fixes aa lasting somewhere from s*ven
to eight minutes.
If the prosecution made any effort
to reconcile this discrepancy, it has
escaped my attention. In his argu
ment the Solicitor made no explana
tion whatsoever. He himself in that
argument not only conceded that this
visit occurred before 12 o’clock, but
made that fact the basis of his
effort to discredit Quinn. The im
possibility of its happening after 1, hi
ignored; and so did the Jury.
No explanation is possible, except
that Conley* lied, or they came bark
again. But the evidence is not that
way. There I.** no hint in the record
that they came back. And people
ought not to be hanged on conjecture,
and especially w’hen conjecture is un
necessary, because inquiry can edaslly
be made. .
Why was Conley ever allowed to
tell such an impossible story? I do
not know. The only conjecture pos
sible Is that before the trial It was not
known just when these ladles were
there. At the trial their testimony
came after Conley’s, but Mrs. White
and Holloway had already told, when f
Conley testified, that their visit was a
before 12. But, while I can not guess
an explanation for this bald fabrica
tion, it was obliged to be a fabrication.
Conley says he was keenly on watch
from 11 o’clock until 12, and tells who
he saw go up and who he saw come
down, or pretends to. He says he
saw Darley then, though, In fact, Dar
ley left at 9:40 and while Conley was
at the laundry. He says he saw Hoi- fe
loway come down and leave HoMo- I
way met Miss H*all and Mrs. Freeman J
as heleft, between 11:80 and 11:45, and
the Solicitor is authority for this. 9
They came in a very few minutes aft
er Holloway left; and yet Conley
didn’t see them. Will those who be
lieve so strongly In Conley as to repu
diate all testimony that conflicts with
his story, even testimony of the
State’s witnesses, go also to the ex
tent of repudiating the argument of
the Solicitor himself and the facts on
which he based it?
There is a matter in the history of
the case that points very conclusively
to the origin of the story of hiding
Conley in the wardrobe. In the early
stages of the investigation the detec
tives had not settled down to any defi
nite theory, except that Frank was
guilty. They were working on the
hypothesis at one stage that Mary
Phagan went there by agreement to
meet Frank; or, at least, that she was
not unwillingly in his office between
12 and 1 o’clock. Then they discov
ered that Mrs. White was there dur
ing that time and did not see Mary
Phagan, and found themselves under
the necessity of working out an ex
planation as to why, if she was there,
Mrs. White didn’t see her. Where the
rumor came from I do not know, but I
remember distinctly that the bizarre
theory was put forth, and obtained
considerable currency, that when thus
interrupted Mary herself was hidden
In the wardrobe. I am not sure, but
there was something like that pub
lished in one of the extras.
When we consider how the detec«<
tlves questioned Conley on every cr
celvable possibility, it is by no meffl^j
doubtful that they asked him aboil? *
the wardrobe stnjr, aftd so this fancj
found lodgment in hlsrbrain arjd gre^
there. We have their own testimony
that they put the meshbag fancy in
his head by questions, and that after
ward he told that. They asked him
about the parasol on May 29, and he
denied seeing it. On the witness stand
their question had ripened into his as
sertion. The story of hearing her
scream came from them. He denied it
on May 29, and yet testified to the
jury that he heard it. They must have
asked him about the stamping, for
they say he denied hearing it. Yet on
the witness stand it was a large part
of his story. They asked him if there
was not a plan considered to bum the
body, and he said he knew nothing
about it. Yet he testified at length
about It at the trial. There is no way
of knowing how much of Conley’s
story was built up that way. The In
stances I have mentioned we know
came from their questions, and w*
know that the idea of hiding some
body in the wardrobe was in existence
before Conley told It on May 28.
However the story originated. It
certainly was untrue, as appears from
the testimony of the State’s witnesses
and the argument of the Solicitor as
to the time of the visit. But its un
truth is not the sole ground of its im
portance. When you see a conjec
ture come into existence, with no evi
dence to produce it, a purely mental
concept, and afterward someone tell*
it as a fact, it raises the unavoidable
Inquiry as to whether there was any
channel of communication between ;
the guesser and the narrator. I have
already shown many such instance* in
which I actually traced the guess, by
living witnesses, from the teller of the
story back to Its origin as a pure guess
in the mind of someone else. As in
stances like this multiply, the proba
bility as to their being told merely to
sustain the guess increases In a geo
metric ratio.
I-et me add Just one another. On
the witness stand Conley told of a
thin piece of fabric torn off of a gar
ment and used as a cord to strangle
his victim. At the place where he
says he found the body there was no
blood, and he says of this fact (brief
of evidence, page 55): “The cloth waa
also tied around her neck, and part
of it WAS UNDER HEAD, LIKE TO
CATCH BLOOD.” The improbability
of the idea that a thin piece of cloth j
could stop the stain of blood or check !
its flow is obvious, but the Inquiry j
does not at first strike the mind as to
why Conley should suppose or sugge*t
such a purpose.
But turn to the dally papers of May
11, where we find the detectives giv
ing out their theories in the interest
of secrecy and caution, as they so i
often and so amazingly do. This was \
long before Conley had told his first ,
story. The published theory contains !
many of the things that were at first j
pure guesswork, which Conley after- i
ward, in the final revision of his story,
told as facts that would fft. Among J
them waa this:
That the assailant then pro
cured a cord and looped around
her neck, after which he dragged
her into one of the small dressing
rooms near by. placing papers or
some old garment beneath her
head to catch the flow of blood.
6. Conley’s Statements as to Time.
Conley says that after he went up j
he was told by Frank that he had j
hurt a little girl, and to go back there j
and bring her forward. He went/j
found her dead, came bark and r*-|
ported. As he came back it was ]
12:56. That hour was in every state
ment Conley made. I do not know Its
significance, but when the truth is I
ascertained of how and when Conley 1
Continued on Next Page.