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Luther Z. Rosser, who is leading attorney of counsel for the defense of Leo M. Frank, indicted for the murder of Mary Phagan at the National Pencil factory. Mr. Rosser, as usual, is playing a game of silence. He has not indicated his line of defense.

Luther Z. Rosser, who is leading attorney of counsel for the defense of Leo M. Frank, indicted for the murder of Mary Phagan at the National Pencil factory. Mr. Rosser, as usual, is playing a game of silence. He has not indicated his line of defense.

Atlanta Georgian

Tuesday, May 27th, 1913

What will be the defense of Leo M. Frank when he is called upon next month to answer to the charge of strangling little Mary Phagan?

With the confident announcement of the police Monday that they had completed a case against the factory superintendent that was as conclusive as it possibly could be without the testimony of actual eyewitnesses of the crime, this question naturally is being asked to-day by everyone who has any interest in the mystery, and that means practically every person in Atlanta.

The people will not get their answer from Luther Z. Rosser, the close-lipped and able attorney of Frank, until the trial actually begins. But even at this early date, when only the vaguest of hints have been given as to the course that will be followed in the battle to free Frank from all suspicion, it is patent that there are many openings offered the defense for attacks upon the theories of the State.

Burden of Proof on State.

Those who are close to the daily developments in Atlanta's baffling murder mystery and who venture to predict the line of defense that will be offered are bearing in mind that, in the first place, the great burden of proof is upon the prosecution and not upon the defense.

It is absolutely necessary, due to the protection with which the law has hedged everyone under suspicion of crime, that the State in some manner, by some piece of evidence, connect Frank directly with the crime or establish his connection beyond a reasonable doubt.

Until the State is able to do this, Luther Z. Rosser may rest on his oars if he so desires. Leo Frank is innocent this moment in the eyes of the law. His innocence does not need to be proved. It is presumed.

It immediately becomes a question, therefore, as to whether the State really has made out a case against Frank, so far as can be judged from the evidence in the hands of the public. Have the detectives by any of their discoveries connected Frank directly with the crime? Have they assembled such a chain of circumstantial incidents as to make his guilt appear certain beyond a reasonable doubt?

Frank's Friends Deny Connection.

Those interested in the defense of Frank answer both questions emphatically in the negative. Not one thing has been found, they declare, that connects Frank directly with the mysterious strangling. Nor do they regard the circumstantial evidence seriously.

The law will not permit Frank's conviction for the crime merely because the detectives have discovered that he had the opportunity. It will not permit his conviction, if no convincing evidence is found against him, merely because he is unable to put his hands on another man and say, "This is the man you want. He is the guilty person."

It is not the intention of the law to hang one man simply because no one else can be found who is the more likely culprit.

After the State has presented its reasons for believing in the guilt of Frank, it is regarded as likely that the defense will claim first of all that the State has failed to establish Frank's connection with the crime beyond a reasonable doubt. The defense will represent that the most the State has done is to establish that he had the opportunity to commit the murder.

Frank never was seen with the girl, either on the day of the strangling or before. It is not known that he ever spoke to her except in connection with her work. Nothing was found to point the finger of accusation directly at Frank, so far as the public has been informed. None of Frank's clothing has been found with blood stains upon it. No finger prints upon the girl's body or her clothes were identified as his. None of this personal belonging were found near the girl's body. Absolutely nothing was discovered in the search of the detectives that fastened the crime on him.

Own Admission Caused Arrest.

The police possibly would never even have known that Frank was the last person to see Mary Phagan, so far as is known, had it not been for his own free admission. He told the officers the moment he identified the body that that was the girl he paid at noon the day before. No one else knew that Mary Phagan was in the building at that time, so far as the evidence reveals. Frank did not have to tell if he had desired to conceal the fact.

The defense, therefore, will be in a position to ask: "Should not this admission, given freely and voluntarily, be regarded as an indication of innocence rather than as an admission of guilt, as the detectives have considered it up to this time? Is a guilty man likely to tell the officers as soon as he is approached that he saw the girl and talked with her, when there is no need of such an admission?"

If the State attempts to show that the murder was committed between 12 and 1 o'clock Saturday afternoon, as one of the theories contends, the defense will be able to argue that there were several other people in the factory at the time, this fact opening the way to the argument that if the crime was committed at this time it need not have been Frank who did it, and to another argument that Frank would have been very unlikely to attack the girl when he knew there were other persons in the factory at the time who might discover him.

May Prove an Alibi.

Should the State seek to prove that the murder was committed in the evening, as the affidavits obtained from Mrs. Mima [sic] Fomby [sic] indicate may be done, the defense will be able to establish a very strong alibi for the suspected man from the testimony of seven persons who are said to have been at Frank's house Saturday evening playing a game of cards.

Several of them already have testified before the Coroner's jury, and all of them are said to be willing to give their testimony in court to the effect that they saw Frank come home that evening about the time he said in his statement to the Coroner's jury, and that he remained home the remainder of the evening, to the best of their knowledge.

This will bring it to an issue of veracity between Mrs. Mima Fomby and these seven persons, who are persons of reputation and standing in the community, if, indeed, the testimony of Mrs. Fomby is allowed admission, which appears doubtful.

Mrs. Fomby swore in her affidavit that Frank called her on the telephone several times between 6:30 and 10:30 o'clock the Saturday night of the murder, asking her for permission to bring a girl to her place. She testified that she denied the request. It is between these hours that Frank has a very well established alibi from all appearances.

Another Motive Possible.

The defense also will be in a position to suggest that there might have been another motive for the crime than the one generally accepted. No physician has stated positively that he was certain of any conclusions from his examination of the body either immediately after the crime or at the times the body was exhumed.

Added to this fact is the unexplained circumstance that the girl's purse never has been found. It contained only the wages she had drawn that day, to be sure, but even this small amount might prove an incentive to some persons, the defense very likely will argue. And it is not at all certain that the robber, if robbery was the motive, had any idea that the amount he would obtain would be so small.

"Is it probable that Frank would have taken the trouble to hide the girl's purse when it could not have incriminated in any way any particular persons had it been lying near her body?" is a question that can be put to the jurors in this connection.

The defense also will fight against the introduction of much of the character testimony that was permitted to go before the Coroner's jury. Frank's attorneys will attack the identification of Frank made by Officer House, of Druid Hills Park, on the grounds of its utter improbability.

Will Attack Officer.

They will question the ability of House to identify a man he has seen only once and after a lapse of two years. They will attack the probabilities of a man of Frank's standing permitting himself to be seen in company with a girl in short skirts.

They will question the probability of his admitting his identity to the officer and saying, "I am Leo Frank, superintendent of the National Pencil Factory," when his main concern naturally would have been to keep his identity secret. Probabilities are bound to play a large part in the trial, declare those interested in the mystery, for it is very much on a sequence of probabilities that the police are basing their expectations of convicting Frank.

Even should the State be able to prove beyond a doubt that it was Frank whom the park guard discovered in company with a young girl two years ago, the defense will still be able to say that this fact no more connects Frank with the murder than it does hundreds of other persons.

The announcement of the detectives themselves that they do not place implicit confidence in the so-called confession of the negro, James Conley, makes it unlikely that the trial will have anything to do with his statement that he wrote notes at the dictation of Frank the day before the murder.

Sentell May Yet Be Witness.

Laying aside the possibility of a premeditated murder, which no one had even suggested up to the time of the negro's alleged confession, the friends of Frank, and those who are without personal interest as well, scouted the idea that Frank, who is an intelligent and shrewd man, would taken an ignorant negro into his confidence and do everything but tell him that he was going to commit a murder on the next day.

It is rumored that E. L. Sentell may yet figure in the case again. Sentell is the man who declared positively before the Coroner's jury that he saw Mary Phagan shortly before midnight the night of the murder. Sentell knew Mary Phagan from infancy. He said that he could not be mistaken in her identification. He testified that he met her on the street in company with some man and that the said, "Hello, Mary," and that she replied, "Hello, Ed."

This testimony would appear quite conclusive were it not for the statements of the physicians that the girl must have been dead at least six hours when found. It is known, however, that some confidence is still being placed in his statements.

* * *

Atlanta Georgian, May 27th 1913, "States Face Big Task in Trial of Frank as Slayer," Leo Frank case newspaper article series
atlanta-georgian-052713-may-27-1913

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