In early May, Fulton County District Attorney Paul Howard announced that he will reopen one of the most notorious criminal proceedings in American history: the trial of National Pencil Company superintendent Leo M. Frank for the murder of child laborer Mary Phagan. The review will be supervised by the newly formed Conviction Integrity Unit, a panel created to look into cold cases. Former governor Roy Barnes will serve as a consultant. Standing at Howard’s side during a news conference, Barnes said, “There is no doubt in my mind that we’ll prove that Leo Frank is not guilty.”
If the judgment of time is the deciding factor, the unit will indeed find Frank innocent. In the years since the April 26, 1913 murder, a consensus has emerged about what happened in Frank’s downtown Atlanta factory that day: The killer was Jim Conley, a black janitor who was the state’s star witness against Frank. While researching And the Dead Shall Rise, my 2003 book on the case, I too reached the same conclusion. This is not, of course, how Georgians first saw it. An all-white jury accepted Conley’s word over that of Frank, his Jewish boss, and the judge sentenced Frank to die by hanging.
The spectacle of a Jim Crow–era court relying on a black man’s testimony to convict a white man of murder was remarkable, but the nation remembers the case because of what happened next. Following extensive coverage in the press and appeals that ran all the way to the United States Supreme Court, Governor John Slaton commuted Frank’s death sentence in June 1915. Shortly thereafter, a group of men from Marietta, Phagan’s hometown, abducted Frank from the Georgia prison farm in Milledgeville, drove him to Marietta, and lynched him. Several months later, the Ku Klux Klan, which had disbanded following Reconstruction, reestablished itself at a cross-burning atop Stone Mountain.
The Frank case opened a deep vein of anti-Semitism in America, unleashing furies that remain part of the national psyche. (The Anti-Defamation League was founded in 1913 to combat those furies.) As a result, any discussion of the subject is difficult. Emotions about it run strong, and, while a majority now believes the factory superintendent was guiltless, others resent what they regard as a knee-jerk acceptance of that fact. Howard’s investigators will need to keep this in mind if they are to vindicate Frank. The affair pitted Jew against Gentile, white against black, rural against urban. Regardless of the outcome, not everyone will be happy.
Attempts to clear Frank’s name are nothing new. In 1982, Atlanta lawyers Charles Wittenstein and Dale Schwartz sought a posthumous pardon for him. The application was based on the revelations of 83-year-old Alonzo Mann, who as a 14-year-old was Frank’s office assistant. In a deposition, Mann swore that on the day of the murder, he entered the factory lobby and saw Conley carrying Phagan’s body. Conley, Mann said, threatened that if he mentioned this to anyone, he’d kill him.
Mann’s story was not only dramatic, but it seemed to give the lie to a central part of Conley’s testimony. Conley asserted that Frank murdered Phagan, who worked for pennies an hour on the factory building’s second floor, after she resisted his sexual advances. He said that Frank then recruited him to cover up the crime and that he transported the body by elevator directly to the factory basement, where the police discovered it the next day. According to Conley, he was never in the lobby with the body. Mann’s statement refuted that.
Powerful as this was, the application for a posthumous pardon—which was opposed by the Phagan family and relatives of Hugh Dorsey, Frank’s prosecutor—failed. The Georgia Pardon and Paroles board announced, “After exhaustive review and many hours of deliberation, it is impossible to decide conclusively the guilt or innocence of Leo M. Frank. For the board to grant a pardon, the innocence of the subject must be shown conclusively.” The board felt Conley may simply have lied about the route he took to get the body to the basement and that Frank could still have committed the murder.
In 1986, Wittenstein and Schwartz reapplied to the board. This time, they sought an apology from Georgia for its failure to protect Frank from the lynch party. The board agreed, but the factory superintendent’s conviction remained intact.
Other efforts to vindicate Frank have proven just as futile. The first came in 1922 when Pierre Van Paassen, a young Dutch journalist working at the Atlanta Constitution, became obsessed with the story. While going through Dorsey’s files, he discovered what he determined to be a telling discrepancy between photos of bite wounds on Phagan’s body and Frank’s dental x-rays. The girl’s murderer, he determined, could not have been the factory superintendent: The photos and the x-rays did not match.
The Constitution, capitulating to pressure from Atlanta Jews fearful of stirring up anti-Semitic sentiments, refused to print Van Paassen’s findings. Not until the 1964 publication of his memoir, To Number Our Days, was the evidence that Van Paassen thought absolved Frank made public. But still no action was taken.
In 1943, Atlanta lawyer Arthur Powell, in a book entitled I Can Go Home Again, asserted that he possessed material exonerating Frank, yet once more Georgia’s Jewish community argued against revealing the information, which was said to implicate Conley. “I accept full responsibility for advising Judge Powell to destroy the memorandum,” wrote fellow Atlanta lawyer Max Goldstein. “It would have merely resulted in renewing the agitation.”
Again and again, in other words, those hoping to prove Frank’s innocence have hit a wall, which leads to the question hovering over the latest attempt: Why is this time different from others?
The involvement of Roy Barnes could provide that difference. The former governor is a native of the Marietta area, and his wife is a granddaughter of a Frank lynch party member. Barnes has a deep understanding of the stain the affair has left on Georgia. He wants to confront the troubled past and bring the truth into the open.
The question is how. Conley disappeared from the public record after a 1941 gambling arrest. There is no death certificate for him. Dorsey’s dossiers on the case, which included the dental x-rays that intrigued Van Paassen, were lost or destroyed sometime during the 1960s following the suicide of his son, James, the family archivist. Even the trial transcript is missing.
There is, however, one promising source: a study conducted by Conley’s lawyer, William M. Smith. The morning after Phagan’s murder, the police found two strange notes by her body. Conley swore that Frank dictated the notes to him in hopes of directing suspicion at another black factory worker. The story was improbable, but in the heat of the moment, the jury and most Georgians believed it. Following the trial, Smith examined the notes, comparing them to other written and spoken remarks by Conley. He determined that the notes, contrary to Conley’s testimony, were not dictated by Frank. They feature Conley’s syntax, misspellings, and slang. According to Smith, they are Conley’s compositions.
Smith’s study of the notes is on file at the Georgia Archives. It persuasively points the finger at Conley, it played a role in Slaton’s commutation decision, and it convinced me. Dusted off and presented anew, the study could establish Frank’s innocence as not just a matter of opinion but of fact. Howard and Barnes should start there.
This article appears in our July 2019 issue.