The Lynching of Leo Frank
Frank was sentenced to hang on September 26, 1913, with the actual execution to take place on October 10, two weeks later. The execution was stayed in order to permit the defense to submit its appeals.
The first appeal, as was the procedure, was submitted to Judge Roan in February, 1914. Such appeals had to be based on errors in law, and could not require a review of the evidence. The defense submitted 115 points of contention, falling into four major categories.
One of the issues that the defense brought forth was the prejudice of two of the jurors. One juror, Henslee, said, "I am glad they indicted the God damn Jew. They ought to take him out and lynch him. And if I get on that jury I'd hang that Jew sure." The other juror, Johanning, was overheard by several individuals to make prejudicial remarks. Dorsey, in counterargument, presented statements from all of the jurors, attesting to their impartiality.
Defense lawyers stressed the nature of the crowds, and the numerous demonstrations both inside and outside the courthouse. Not only could the jury hear the crowd surrounding the building and, of course, witness the outbursts of those in the courtroom, but also, it was argued, the jurors could not help but be intimidated by the prejudicial climate these demonstrations created. The jury said that they ignored the courtroom outbursts, and that they didn't hear the crowd outside.
The unsupported testimony that accused Frank of sexual perversion should never have been admitted, the defense maintained, and was prejudicial to Frank's receiving a fair trial.
Finally, as is the custom in such appeals, the defense said that the weight of the evidence did not support the verdict, that it was weakly circumstantial and bolstered by questionable testimony by the prosecution's principal witness, Jim Conley.
Judge Roan denied the appeal, but curiously added: "I have thought about this case more than any other I have tried. I am not certain of the man's guilt. With all the thought I have put on this case, I am not thoroughly convinced that Frank is guilty or innocent." But, Roan said further, the jury had been convinced, and on that basis was compelled to rule against the motion for a new trial.
The next avenue open for appeal was to the Georgia Supreme Court, which ruled, four to two, that Roan's ruling be upheld. Shortly after the Supreme Court ruling, the State Biologist found that the hair discovered on the lathe at the supposed murder scene was not that of Mary Phagan. Dorsey discounted this scientific judgment by saying that if other witnesses said it was Mary Phagan's hair, then it must have been her hair.
In preparation for further appeals, the defense gathered retractions from prosecution witnesses. Mrs. Formby, who had testified concerning Frank's attempt to rent a room for a liaison with a young girl, retracted her statements, accusing the police of getting her drunk during her interrogation. George Epps, the young boy who said that Mary Phagan had told him of Frank's inappropriate and unwanted attentions toward her, repudiated his statement, and then, from juvenile hall where he was incarcerated, recanted his recantation. Further, analyses of the notes written on old order pads --- the crude notes found near the body --- could not have been written on order pads found in Frank's office, since the order pads used had the date "190_" on them and had been stored for some time in the basement. In the note, certain phrases had been used that were part of the folklore of Southern Negroes, and could not have been known to Frank, the alleged dictator of the notes.
The next attempt at appeal was an interesting one, in which the defense petitioned the district federal court for a writ of habeas corpus. that is, unlawful detention, and asked for immediate release of the prisoner. The argument was that Frank had been denied due process, since, without his consent, he had not been present when his verdict was rendered. This was rejected by a three-judge panel, two to one.
During the period of the appeals, the Atlanta Journal editorialized about its grave doubts over Frank's guilt. The local paper was joined in this doubt by the New York Times and the journal of the American Jewish Council, both of which treated their statements gingerly, so as not to arouse the sectional anger of the Southern papers.
The anti-Semitism in the South and the prejudice against Frank was maintained by the writings and speeches of one of the South's most popular politicians, the populist Tom Watson, whose publications continued to castigate Northern meddlers, Northern rich Jews, and Frank's lawyers. His influence was considerable, and he had been in the public eye for so long --- he had run as William Jennings Bryan vice-presidential candidate in 1896 --- that he was able to forestall the development of any sympathy for Frank's case.
The next appeal went to the Georgia Supreme Court again, this time as a writ of error, again based on a lack of due process. Again, the appeal was rejected, and the motion moved to the United States Supreme Court. Justice Oliver Wendell Holmes refused the appeal as a writ of error, but felt that due process had not been present in the trial, based on his review of the accounts of the crowd and the hostile environment it created. Again, an appeal made its way back to the federal court, then to the Georgia Supreme Court, and back to the U.S. Supreme Court. This final appeal was rejected, seven to two, on the basis that habeas corpus cannot substitute for a writ of error, and there was no writ of error. Holmes and Justice Charles Evan Hughes dissented.