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Reading Time: 11 minutes [1933 words]

The Atlanta Constitution,

Thursday, 23rd October 1913,

PAGE 1, COLUMN 2.

Tried and Convicted

by the

Courtroom

Spectators and

Not by the Judge and

Jury,

Declares Rosser.

TODAY'S HEARING

MAY

LAST UNTIL

MIDNIGHT

Fight Is Bitter Over

Conley's

Testimony, Defense

Declar-

ing That It Should

Never

Have Been

Considered.

Declaring that the crowd and not the judge and jury tried

and convicted Leo M. Frank of the murder of Mary Phagan, Luther

Rosser, senior counsel for the prisoner, yesterday urged the many

demonstrations for the solicitor general as sufficient reason why

the convicted superintendent should have another trial.

This was, however, but one of the forty grounds argued

Wednesday when the hearing began before Judge Roan in a little

anteroom in the state library at the capitol. As 115 objections

have been noted to the rulings in the case, it will be several days

at least before a decision will be reached.

The proceedings are as tedious as the original trial was

dramatic and thrilling. Both the solicitor and counsel for the

defense fight bitterly and desperately over every detail.

Wrangling and debate occupied more than two-thirds of the first

day's session.

The hearing had hardly begun when Rosser blazed at

Solicitor General Dorsey, who prosecuted the prisoner, the charge

that he was striving to hang Frank on any pretext, matter not how

small:

You would kill him on the dotting of a T or the crossing of a

t.'

And you, retorted the solicitor, with equally as much

display of spirit, are trying to make a mountain of a mole hill.

Forty Clauses Examined.

The entire day was spent in examining forty of the 115

grounds contained in a single volume which the defense offers for

a new trial. Neither side seemed to gain much headway. Heated

disputes arose over many of the points, and much time was lost

in going back over records and history of the case.

The hearing would undoubtedly have run into a night session

had it not been for the closing hour at 6 o'clock of the library.

Tonight the session will likely be held until midnight or later. It is

Judge Roan's expressed wish that the hearing be ended just as

early as possible.

A tense battle was staged over the testimony of Jim Conley

when the defense presented many parts of his story as grounds

for new trial. The fight was entirely as spectacular as the one

waged against Conley's story during the trial. The result,

however, was the tabling of those particular grounds pertaining to

Conley for future examination.

Other grounds that were bones of contention between the

prosecution and defense were those that related to testimony at

the trial of Frank's immorality. It was while the story told by the

Jackson girl of Frank looking into a girl's dressing room while she

was disrobing was being discussed that the session came to an

end at 6 o'clock.

Hearing Behind Closed Doors.

Solicitor Dorsey was assisted by his assistant, E. A.

Stephens, while Colonel Rosser and Colonel Arnold were aided by

Stiles Hopkins and others. The hearing was behind closed doors,

less than a dozen persons, including reporters being admitted. It

will probably last at least a week, though some say it will come to

an end next Saturday.

So far, nothing has been mentioned of the affidavits

charging bias against Jurors Johenning and Henslee. No witnesses

have been examined. Only forty of the grounds given in the

petition for a new trial have been considered.

Each clause is read by the defense. Objection"if there be

any"is made by the solicitor. Argument follows. An end of which

is the checking of the reason by Judge Roan for future use. It will

require probably all of today to finish examining these 115

sections.

An agreement has been made between the two sides to

admit any new evidence which might arrive for either defense or

prosecution at the time it appears. This was done because both

sides expect to obtain new affidavits relative to the jurors.

Both Mr. Arnold and Rosser objected vigorously at the

opening of the hearing to reference to the records for argument

presented by either the defense or solicitor. The stenographers,

they declared, had recorded the argument inadequately, and that

the only successful manner in which they could go back to

argument of any kind during the trial was by memory.

Agree to Use Records.

It was agreed, however, to use the records. This was done

after much

Continued on Page Two.

PAGE 2, COLUMN 4

FIGHTS FOR FRANK

Photo by Francis E. Price

HERBERT HAAS.

Photographed for Constitution Wednesday while Frank hearing

was in progress. He is associated in the case with Arnold and

Rosser.

PAGE 2, COLUMN 4

CROWD RAN TRIAL

SAY FRANK'S

LAWYERS

Continued From Page One.

protest, during which Solicitor Dorsey said: It is a remarkable

thing about this business that the court stenographers failed to

accurately record any of the important arguments"or, rather, any

of those contained in the motion for new trial.

This is the first time I've ever heard of such a thing

happening. There isn't a man on earth who could recall those

objections and arguments. It is strange"exceedingly strange"if

they are not recorded as completely as they should have been.

One section objected to the admission as evidence of the

talk of Detective Starnes over the telephone with Frank on the

morning of the murder's discovery in which Starnes testified at

the trial that he was guarded because of importance of the

message he was conveying.

Among the other sections considered were the following:

The admission of the state's diagram of the pencil factory

building to be used as evidence, and which was marked with

Greek crosses and dots to outline the state's theory.

The admission of Black's testimony of Frank's conduct on the

day of the discovery, which he compared with previous days.

The testimony of Black to the effect that counsel had been

obtained by the time Frank was first carried to police

headquarters.

Argue Over Bloody Shirt.

The failure of the court to admit Newt Lee's admission of

owning the bloody shirt as testified to by Witness John Black.

The court's failure to exclude a number of questions and

answers of Jim Conley's testimony, which, the defense alleged,

was highly prejudicial, and which involved transactions far

removed from the real issue.

To this particular section, the solicitor answered that

objection to Conley's story was not made until twenty-four hours

after it was given. Also, that objection was made not until the

defense had examined the witness in question.

A long argument lasting hours resulted over this. Colonel

Arnold declared that Conley was not cross-examined upon the

salacious part of his story, but merely regarding dates and

incidents connected with his watching at the first door while Frank

was alleged to have entertained girls and women on the office

floor.

At the close of the dispute Colonel Rosser said:

If this testimony of Conley's is admissible, why, we'll take

our medicine. If not, we have been done a horrible injustice. And

we're not going to say we let that particular testimony hang this

man. It won't. It can't.

Of the other reasons named in the motion, the first following

this dispute to be considered was the section relating to the

negro's story. It was an objection to Conley's statement that the

had seen Frank in a position with women in which he had never

seen any other man with children. Objection was made on the

grounds that it was highly prejudicial.

Made Too Late, Says Dorsey.

Dorsey's answer to this was that all objections to Conley

were made after the defense had examined him thoroughly.

It was during the presentation of this section that Colonel

Arnold accused Dorsey of having been guilty of contempt of court

in having violated a rule of Judge Roan's during Conley's

examination.

We objected strenuously to any testimony of Frank being in

his office with women. We received your ruling, your honor,

Dorsey ignored it. It could have been construed that Frank was

committing most any crime.

Yes, laughed the judge, maybe such a crime as dancing

the tango.

Which would be considerable crime, rejoined the lawyer.

Other reasons were:

Because the court permitted Conley to tell of the trip on

which he was taken by the police to interview Frank in the jail,

and which he failed to do.

Solicitor Dorsey Objects.

Because Mrs. Mattie White was allowed to take the stand to

tell of her conversation with detectives on May 7 when she told of

having seen a negro loitering on the first floor of the pencil

factory during the afternoon of the murder date.

A strong objection was made to this reason by the solicitor,

who said:

It was admissible evidence solely because her failure to

report it immediately tended to show an effort toward

concealment, which undisputedly bore indication of Frank's guilt.

Because the court permitted Sheriff Mangum to tell of his

conversation with Frank when he strove to obtain the prisoner's

permission to talk with Conley in the presence of Chief Beavers

and Harry Scott, the Pinkerton man.

Because Dr. Harris was allowed to tell of cabbage tests he

had made on other men and to draw his own conclusions before

the court of the time Mary Phagan met her death.

Because Jack Dalton was allowed to give testimony of

matters and incidents which bore no remote relation to the issue

at trial, and the exploitation of which, according to contention,

was designed to create prejudice.

A strong plea"in fact, one of the strongest the defense

claims in its first volume of grounds"is the record of

demonstrations of the crowds during the trial. When these records

were offered in the afternoon, Solicitor Dorsey replied:

Your honor is thoroughly acquainted with these instances. I

have nothing to say of them.

Defense Gains a Point.

After which Mr. Arnold requested Judge Roan to certify that

the jury was near enough to hear the applause that rang out at

times in the courtroom. Mr. Arnold also suggested a practical

demonstration, offering to go to the scene of the trial for such a

move.

To this the solicitor answered:

It is a matter of evidence, and should be told by the jurors,

not the judge.

Mr. Rosser broke in:

But the juror won't admit it.

We have affidavits from most of them saying they never

heard the outbreaks, said Dorsey.

The result was the recording of Judge Roan's opinion that the

jury was situated within distance sufficient to hear any of the

demonstrations in the courtroom.

The testimony of Herbert Schiff, chief clerk of the pencil

factory, was also brought up during the hearing. One of the

motion's reasons was based on the colloquies between the

solicitor and Schiff, when Dorsey, upon examining the witness

from a personal standpoint, announced to the court that he was

trying to show the chief clerks feeling in the case.

Tried by Crowd.

It was during the argument over demonstrations in the

courtroom that Colonel Rosser declared heatedly that it was his

intention to show Judge Roan that it was the crowd and not the

judge or jury who conducted the Frank trial and convicted him.

This declaration was laughed at by the solicitor.

At the introduction of each section, Judge Roan made

particular note of it and also the protest"whenever there was a

protest"made by the solicitor. Each of the grounds will be probed

before they are taken into consideration. This will take

considerable time.

Today's session will begin at 9 o'clock this morning.

PAGE 7, COLUMN 2

Curious Citizens

Barred

From the Frank

Hearing;

Many Go to Wrong

Place

Surprisingly large numbers of people congregated yesterday

in and about the cold city hall on Pryor street, expecting to be

admitted to the hearing which they believed to be in progress in

the structure on the motion of the attorneys for Leo M. Frank for a

new trial.

As early as 8 o'clock Wednesday morning there was a

regular stream of men weaving in and out of the old city hall

refusing to believe the word of the attendants of the various court

rooms that the Frank hearing was not in progress there. The

visitors or would-be auditors, continued their vigil during the

afternoon hours, but to no avail.

In the crowds which were about the temporary courthouse

were seen many of the men who managed to attend the daily

sessions of the original Frank trial.

On account of the court being held in the first floor

courtroom by Judge Calhoun, the Frank hearing was transferred to

the library at the state capitol. The public has been barred from

the rooms, only the attorneys on both sides, Judge Roan and the

newspaper men engaged in the actual work of following the

retrial motions, being admitted. Deputy Sheriff Plennie Minor is on

guard at the capitol.

PAGE 11, COLUMN 4

PROFESSIONAL

CARDS

P. H. Brewster, Albert Howell, Jr.

Hugh M. Dorsey, Arthur Heyman,

Dorsey, Brewster, Howell &

Herman,

Attorneys-at-Law.

Offices: 202, 204, 205, 206, 207,

208, 210

Kiser Building, Atlanta, Ga.

Long-Distance telephone 3022,

3024,

and 3025, Atlanta, Ga.

Thursday, 23rd October 1913 Crowd Conducted Frank Trial Says Prisoner's Lawyer
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