taken place in Atlanta during the previous eighteen months, and the police were under pressure to find the culprit. Early newspaper reports erroneously suggested that Mary Phagan had been raped, and crowds of people were soon milling about the police station, anxious to get their hands on whoever had committed the crime. Frank’s uneasy behavior and the public’s hunger for justice made him a prime suspect. He was arrested two days later.

Shortly thereafter some factory employees told a coroner’s jury, convened to determine the cause of death and suggest possible suspects for investigation, that Frank had “indulged in familiarities with the women in his employ.” And the proprietress of a “rooming house” signed an affidavit swearing that on the day of the murder Frank had telephoned her repeatedly, seeking a room for himself and a young girl. Both these charges were later proved false (many witnesses recanted their accusations later), but newspapers headlined them, fueling talk of Jewish men seeking Gentile girls for their pleasure. The solicitor general, Hugh Dorsey, built a case for the prosecution around Frank’s alleged perversions. Four weeks after the murder the grand jury granted the indictment Dorsey sought.

Unknown to the members of the grand jury, however, another suspect had also been arrested. He was Jim Conley, a black janitor at the factory who had been seen washing blood off a shirt there. He admitted having written two notes found near the body. They read: “Mam that negro hire down here did this i went to make water and he push me down that hole a long tall negro black that hoo it was long sleam tall negro i wright while play with me” and “he said he wood love me land dab n play like the night witch did it but that long tall black negro did buy his slef.”

At first, almost all investigators assumed that the author of these items had committed the crime. But Conley claimed to have written them as Frank dictated the words, first the day before the murder occurred, then, according to Conley’s second affidavit, on the day of the crime.

Conley ultimately signed four affidavits, changing and elaborating his tale each time. Originally, he said he had been called to Frank’s office the day before the murder and asked to write phrases like “dear mother” and “a long, tall, black negro did this by hisself,” and he claimed to have heard Frank mumble something like “Why should I hang?” But the newspapers found the idea of Frank’s having prepared for an apparent crime of passion by asking a black janitor to write notes about it utterly ridiculous. So Harry Scott, the chief detective, said he then “pointed out things in [Conley’s] story that were improbable and told him he must do better than that.” Another lengthy interrogation led to the second affidavit. It stated that Frank had dictated the notes just after the murder and that Conley had removed the

dead body from a room opposite Frank’s office, on the second floor, and taken it by elevator to the basement. (Later evidence showed that the elevator had not been in operation from before the time of the girl’s death until after her body was discovered.) A third affidavit spelled out in greater detail the steps Conley had allegedly taken in assisting Frank with the disposal of the dead girl. The Atlanta Georgian had already protested after the janitor’s second statement that with Conley’s “first affidavit repudiated and worthless it will be practically impossible to get any court to accept a second one.” But Atlantans had been so conditioned to believe Frank guilty that few protested the inconsistencies in the janitor’s tale.

Among those who questioned the prosecution’s case against Frank were the members of the grand jury that had originally indicted him. They wanted Dorsey to reconvene them so that they could charge Conley instead. Dorsey refused, so the jury foreman did it on his own. It was the first time an Atlanta grand jury had ever considered a criminal case against the wishes of the solicitor general. Then Dorsey came back before the group and pleaded with them not to indict the black man. Exactly what he told them was not made public, but the next day the Atlanta Constitution reported that “the solicitor did not win his point without a difficult fight. He went in with a mass of evidence showing why the indictment of the negro would injure the state’s case against Frank and stayed with the grand jurors for nearly an hour and a half.”

It is difficult to say why the grand jury ultimately supported Dorsey. Perhaps they accepted the Atlanta Georgian ’s explanation: “That the authorities have very important evidence that has not yet been disclosed to the public is certain.” Or, given Southern values, they may have assumed that no attorney would base his case on the word of a black man “unless the evidence was overwhelming.” In any case, the solicitor prevailed and prepared to go to trial.

THE TRIAL BEGAN ON JULY 28, 1913, and brought forth large and ugly-tempered crowds. The heinous nature of the crime, rumors of sexual misdeeds, newspaper reports of “very important evidence that has not yet been disclosed,” the solicitor general’s supreme confidence, and anti-Semitism (a Georgia woman had written that “this is the first time a Jew has ever been in any serious trouble in Atlanta, and see how ready every one is to believe the worst of him”) combined to create an electric tension in the city. Gossip about Frank had been widespread, and many Georgians wondered if an unbiased jury would be possible. But jury selection was swift, and in an atmosphere punctuated by spontaneous applause for the prosecuting attorney and shouts of “Hang the Jew” from throngs outside the courthouse, the proceedings unfolded.

Solicitor Dorsey opened his

presentation by trying to establish where and when the crime had occurred. He elicited testimony from several witnesses about blood spots on the floor and strands of hair on a lathe that Mary Phagan had allegedly fallen against in the room opposite Frank’s office. (The state biologist had specifically informed the prosecution that the hair was not Mary Phagan’s, and many witnesses testified that the bloodstains could have been merely paint spots; Dorsey ignored them.)

The heart of the state’s case, however, revolved around Jim Conley’s narrative. Although his story had gone through several revisions during the previous weeks—all of them published in the newspapers—his courtroom account mesmerized the spectators. Conley told how he had served as a lookout in the past when Frank “entertained” women in the factory (no such women ever appeared at the trial), how after an agreed-upon signal he would lock or unlock the front door or go up to the superintendent’s office for further instruction. He claimed that on the fatal day Frank had summoned him to his office, and when he arrived there, he had found his boss “standing up there at the top of the steps and shivering and trembling and rubbing his hands.…He had a little rope in his hands.…His eyes were large and they looked right funny.…His face was red. Yes, he had a cord in his hands.…After I got up to the top of the steps, he asked me ‘Did you see that little girl who passed here just a while ago?’ and I told him I saw one.…‘Well…I wanted to be with the little girl and she refused me, and I struck her and…she fell and hit her head against something, and I don’t know how bad she got hurt. Of course you know I ain’t built like other men. The reason he said that was, I had seen him in a position I haven’t seen any other man that has got children.” Conley did not explain that last sentence; instead he went on to detail how Frank had offered, but never given him, money to dispose of the body. He said that Frank had then asked him if he could write and, when he said yes, had dictated the murder notes.

When Dorsey concluded his presentation, Frost’s Magazine of Atlanta, which had previously made no editorial comment about the case, condemned both the solicitor and Atlanta’s chief detective for misleading the public into thinking that the state had sufficient evidence to warrant an accusation against Frank. “We cannot conceive,” the commentary read, “that at the close of the prosecution, before the defense has presented one single witness, that it could be possible for any juryman to vote for the conviction of Leo M. Frank.”

Frank had retained two of the South’s best-known attorneys to defend him: Luther Z. Rosser, an expert at cross-examination, and Reuben R. Arnold, a prominent criminal lawyer. Despite their brilliant reputations, they failed to display their forensic

talents when they were most needed. Rosser and Arnold cross-examined Conley for a total of sixteen hours on three consecutive days and could not shake his basic tale. He continually claimed to have forgotten anything that tended to weaken the case against Frank, and some observers thought Conley had been carefully coached by the solicitor general and his subordinates. The murder and disposal of the body would have taken at least fifty minutes to accomplish as the janitor described them, yet witnesses corroborated Frank’s recollection of his whereabouts for all but eighteen minutes of that time. Furthermore, much of Conley’s narrative depended on his having removed the body to the basement via the elevator, but floor markings, the absence of blood in the elevator, and other incontrovertible evidence proved that he hadn’t. Why Frank’s attorneys failed to exploit these facts, and why they also failed to request a change of venue before the trial began, has never been explained. But their inability to break Conley undermined their client’s case. A reporter who attended every session of the hearings later observed, “I heard Conley’s evidence entire, and was impressed powerfully with the idea that the negro was repeating something he had seen.…Conley’s story was told with a wealth of infinitesimal detail that I firmly believe to be beyond the capacity of his mind, or a far more intelligent one, to construct from his imagination.”

Rosser and Arnold’s biggest error was probably their attempt to delete from the record Conley’s discussion of times he had “watched for” Frank. For a day the two men got the janitor to talk about Frank’s alleged relationships with other women, hoping to poke holes in the testimony; then they tried to get the whole discussion stricken. Even one of Dorsey’s assistants agreed this information should not have been allowed into the record but added that once Conley had been examined and cross-examined on the subject, it was wrong to try to expunge it. “By asking that the testimony be eliminated,” the Atlanta Constitution noted, the defense “virtually admit their failure to break down Conley.”

It did not matter thereafter that witnesses came in to attest to Frank’s good character and his whereabouts before, during, and after the murder. It also made little difference that Frank’s explanation of his activities on the day of the murder carried, according to the Constitution , “the ring of truth in every sentence.” Conley’s narrative absolutely dominated the four-week trial.

In their summations Arnold and Rosser accused the police and solicitor general of having fabricated the evidence. Arnold stated that “if Frank hadn’t been a Jew, there would never have been any prosecution against him,” and he likened the entire case to the Dreyfus affair in France:

“the savagry  sic] and venom is…the same.”

But once again, Dorsey emerged the winner. The Constitution described his closing argument as “one of the most wonderful efforts ever made at the Georgia bar.” The solicitor reviewed the evidence, praised his opponents as “two of the ablest lawyers in the country,” and then reemphasized how these men could not break Conley’s basic narrative. He went on to state that although he had never mentioned the word Jew , once it was introduced he would use it. The Jews “rise to heights sublime,” he asserted, “but they also sink to the lowest depths of degradation.” He noted that Judas Iscariot, too, had been considered an honorable man before he disgraced himself. The bells of a nearby Catholic church rang just as the solicitor was finishing. Each time Dorsey proclaimed the word guilty, the bells chimed, and they “cut like a chill to the hearts of many who shivered involuntarily” in the courtroom.

The jury took less than four hours to find Frank guilty, and the judge, fearing mob violence, asked the defense to keep their client out of court during sentencing. Rosser and Arnold agreed. Solicitor Dorsey requested that they promise not to use Frank’s absence as a basis for future appeals—even though barring a defendant from his own sentencing might constitute a denial of his right to due process of law—and the two defense attorneys assented.

Frank’s attorneys kept their word and ignored the issue in their appeals for a new trial. According to state law, appeals in a capital case could be based only on errors in law and had to be heard first by the original trial judge. Rosser and Arnold based their appeal on more than 115 points, including the alleged influence of the public on the jury, the admissibility of Conley’s testimony about Frank’s alleged sexual activities, and affidavits from people who swore that two of the jurors were anti-Semitic. (One had allegedly been overheard to say, “I am glad they indicted the goddamn Jew. They ought to take him out and lynch him. And if I get on that jury I’d hang that Jew sure.”) Dorsey and his associates countered with affidavits from the jurors swearing that public demonstrations had not affected their deliberations. In his ruling, Leonard Roan, the trial judge, upheld the verdict and commented that although he was “not thoroughly convinced that Frank is guilty or innocent. The jury was convinced.”

THE NEXT APPEAL, TO THE GEORGIA Supreme Court, centered on Roan’s doubt of Frank’s guilt, but the justices went along with the earlier decision. This court concluded that only the trial judge could decide whether the behavior of the spectators had prevented a fair trial and whether the jurors had been partial. The judges also ruled Conley’s testimony relevant and admissible and dismissed Roan’s personal expression of doubt.

At this point, Frank replaced his counsel.

The new attorneys did not feel bound by their predecessors’ promise to Dorsey, and they pressed the argument that Frank had been denied due process by being absented from his sentencing. But the state supreme court responded that “it would be trifling with the court to…now come in and…include matters which were or ought to have been included in the motion for a new trial.”

The new attorneys went on to try to get the United States Supreme Court to issue a writ of habeas corpus, on the ground that the mob had forced Frank to absent himself from the court at the time of his sentencing, and thus he was being held illegally. The Court agreed to hear arguments on that question and, after two months, rejected the plea by a vote of 7-2.

Justice Mahlon Pitney explained that errors in law, no matter how serious, could not legally be reviewed in a request for a writ of habeas corpus but only in a petition for a writ of error. And Frank’s contention of having been denied due process “was waived by his failure to raise the objection in due season.…” In a celebrated dissent, Justices Oliver Wendeil Holmes and Charles Evans Hughes concluded, “Mob law does not become due process of law by securing the assent of a terrorized jury.”

It is difficult for those not well-versed in the law to follow the legal reasoning behind such procedural and constitutional questions, especially when judges are not even considering disputes in testimony or blatantly expressed prejudices. So, many people assumed that the Court was reconfirming the certainty of Frank’s guilt. Afterward, his attorneys sought commutation to life imprisonment rather than a complete pardon because they concluded that after all the judicial setbacks they would have a better chance with the governor that way.

Once the case came before him, Governor John M. Slaton moved with dispatch. He listened to oral presentations from both sides, read the records, and then visited the pencil factory to familiarize himself with the scene of the crime. Since the two sides differed in their arguments on where the murder had actually taken place—the metal-lathe room on the second floor versus the factory basement—and whether the elevator had been used, the governor paid particular attention to those parts of the building. Besides the voluminous public records, Slaton received a personal letter written by the trial judge recommending commutation, a secret communication from one of Hugh Dorsey’s law partners stating that Jim Conley’s attorney believed his own client was guilty, and a note from a federal prisoner indicating that he had seen Conley struggling with Mary on the day of the murder.

For twelve days, SIaton wrestled with the materials. On the last day, he worked well into the night, and at 2:00 A.M., on June 21, 1915, he went up to his bedroom to inform his wife. “Have you reached a decision?” she asked.