Popular Crime

by Bill James

  4) Conley was a man of extremely bad character, arrested and incarcerated many times throughout his life for many different types of crimes.

  5) Conley told a story in which he was pressured by Leo Frank to assist Frank in covering up the murder. He thus acknowledged participating in the staging of the crime scene, including writing the notes, but insisted he had done so at Leo Frank’s direction. The story told by Conley is clearly untrue.

  6) Alonzo Mann, a 14-year-old office boy for Leo Frank, came forward many, many years later, when he was near death, and confessed that he had seen Jim Conley with an unconscious Mary Phagan in his arms. He said that Conley had threatened to kill him if he told what he knew. Mann’s mother ordered him to keep quiet, his father re-enforced the order, and the police never asked him what he knew. The story told by Alonzo Mann appears to be true.

  In any case, the story told by Jim Conley is quite certainly false, and should have been seen at the time to be false. Mary Phagan ate a lunch of cabbage and bread about 11:30 to 11:40 on the day of her death. The cabbage and bread were found in her stomach during her autopsy, largely undigested, indicating that she had died within an hour of her last meal. Leo Frank reported giving her pay envelope to her at 12:05. She was never seen alive after that.

  But in Conley’s story, Frank asked him to help dispose of Mary Phagan’s body much later in the afternoon, sometime around 4:00. It has to be that late, because a prosecution witness saw Frank step out of his office at about 12:30—about the time that Mary Phagan actually died—and Frank’s time is well accounted for most of the afternoon. He was seen by dozens of people doing different things in that time period. The prosecution’s case simply ignored the actual time of death, even though that time of death could be well established.

  In Conley’s story, Frank committed the murder on the second floor of the pencil factory, and Conley assisted him in moving the body to the basement, using the elevator. There were two ways of getting into the basement—the elevator, and a trap door with a ladder beneath it. Conley said that they moved the body with the elevator, but there are four facts indicating that the body was moved through the trap door:

  1) Blood smears on the trap door,

  2) Drag marks from the ground under the trap door to the place where the body was found,

  3) Persons working in the factory near the elevator, who would have heard the elevator had it been used during the afternoon, swore that the elevator was turned off and was never used during the day,

  4) Conley acknowledged that he had defecated into the elevator shaft on the morning of the murder. The elevator went all the way to the ground, and jarred to a stop when it hit bottom. When police investigating the crime rode the elevator to the basement the elevator car smashed the excrement and released the odor from it, indicating that the elevator had not been to the basement since Conley had used it as a toilet.

  So the story Conley told in court is wrong about the time and the place of the murder, and is also clearly wrong about innumerable other facts. He said that the notes found with the body were written in Frank’s office, but they were written on discarded paper that was stacked in the basement, near where the body was found. Conley said that Mary Phagan was strangled with a strip of bed tick torn from a discarded mattress, but there was no such mattress and no such cloth in the factory. When other people write that Conley committed the murder, skeptic that I am, I look for an escape hatch to suggest some other solution, but there simply isn’t one. Conley quite obviously committed the murder.

  How, then, did the police, the prosecutors, the jury and the public get it so fantastically wrong? Why did almost everybody in the South, including Mary Phagan’s family, choose to believe a filthy, drunken, semi-literate black criminal telling a story that doesn’t match the known facts in one particular after another, rather than a clean, white, sober, upstanding and respectable factory supervisor whose only real story was that he had no idea what had happened?

  The short answer is that our emotions, once engaged, have a powerful capacity to pull us toward the explanation that we choose to believe. The nation’s passions were engaged in the Mary Phagan story to an extent that they have never been engaged in any other crime story. I suggested before two factors that contributed to that, but also, the nation’s passions were already enflamed at that time. As I argued in a previous chapter, we were drifting toward civil war. We were not near civil war, but we had begun to drift in that direction about 1890, and by 1913 we had moved a good distance. The basic schism was rich against poor, capitalists against labor. It was an era of genuine, deep, widespread hatred of the rich. Leo Frank represented one side of that divide. Mary Phagan represented the other.

  Onto this volatile stage stepped four people: Mary Phagan, Leo Frank, Jim Conley and Hugh Dorsey. Hugh Dorsey was the Fulton County Prosecuting Attorney. He stepped into the investigation of the crime at a very early stage, and personally prosecuted the case. After winning the case he stepped outside into a jubilant mob that thrust him into the air and passed him over their heads several hundred feet to his office, his feet never touching the ground. He was elected Governor of Georgia on the sole basis of the popularity he gained through the Phagan/Frank case.

  Some people have painted Dorsey as a cynical man who prosecuted Frank for his own political gain. I doubt that that is accurate. I think that he sincerely believed that Frank was guilty.

  Do you remember the Duke Lacrosse Non-Rape story? In that case the highest elected official connected with the case, Mike Nifong, entered the case very early, made a decision about who to believe very early, and committed himself to that view, in the press and in full view of the public, at a very early stage, before the facts of the case emerged. The same thing here; Dorsey entered the case very early, which was somewhat unusual but not entirely unusual and not improper, and committed himself in the press to Frank’s guilt.

  Nifong became so convinced that the Duke players were guilty that he lost all judgment, and began to say things that were just frigging stupid in defense of the proposition that a rape had occurred. But in the Duke case the police didn’t get emotionally invested in the case. As soon as the case against the lacrosse players began to fall apart the police cut Nifong’s legs off, and the press tore him to shreds—as they should have done; his actions were irresponsible, and very dangerous.

  But in the Mary Phagan case the police followed Dorsey headfirst into hell, and carried the local press with them. Within seven days of the murder the Atlanta public was thoroughly convinced that Frank was good for the crime—a not unusual thing. In high-profile cases the police very often try to relieve the pressure on themselves by leading the public toward an early decision that the guilty party has been identified.

  Dorsey focused on Frank essentially because he misread his eyes. He saw nervousness in Frank, and he misread it for guilt. Perhaps Frank did feel guilty about something. Perhaps he was embezzling a little bit from the company, or perhaps he was involved with a young girl who worked there. Perhaps he had been attracted to Mary Phagan. Perhaps he was just a nervous young man with some limits to his social skills. God knows what it was, but in any case Dorsey came to an early and mistaken belief in Frank’s guilt.

  A month passed before the investigation focused on Jim Conley. Conley was first interviewed by the police a few days after the crime. He told police that he could not read or write, and the police wrote him off because they assumed at that time that the murderer was the author of the notes found with the body.

  A month later the police learned that Conley could in fact read and write. On comparing his previous letters to the murder notes, it was obvious that he had written the notes—but by that time the police, the prosecutors and the public were deeply committed to the theory that Frank had committed the crime. When Conley said that he had participated in moving the body and staging the crime scene, at the behest of and at the direction of Leo Frank, this simply re-enforced their belief in Frank’s guilt. When Conley tol
d a story about these events that didn’t make any sense, the police pressured him to re-construct his story to fit the scenario that they had developed. There is no doubt that this occurred. The police testified that it occurred. They testified to it like “When Conley finally confessed to being involved he told us a pack of lies about how things had happened, but after we leaned on him for a couple of days he finally told us the whole truth.”

  There was a powder keg, and there was a match, and the match was thrown into the powder keg, and then gasoline was sprayed into the fire. The powder keg was the intense emotions of the moment, which were national in scope. The match was the very emotional nature of this case, which was both an innocent-victim case and a Dreyfus case. The act of throwing the match into the powder keg was Dorsey’s premature commitment to the guilt of Leo Frank.

  And the gasoline was the Northern press. The national press, entering the story later and from a much greater emotional as well as literal distance, immediately saw through the prosecution’s case. By the time the Northern press took an interest in the case more facts had emerged. But you now had a Southern press corps that was absolutely convinced of Frank’s guilt, and a Northern press that was certain of his innocence.

  It was 48 years since the end of the Civil War. Many, many of the witnesses at the trial had lived through the War, and most of the adult population of the South still stung from the humiliations of the South that took place in the reconstruction era. The Northern press patronized the South, writing about the people of Atlanta as if they were a passel of ignorant slobs who had no interest in seeing justice. Amazingly enough, this did not cause the Southerners to back off and take a second look at the evidence against Frank. Belief in Leo Frank’s guilt became a touchstone of Southern loyalty. Alonzo Mann had witnessed Conley with Mary Phagan’s body in his arms. When he tried to tell his fellow soldiers during World War I that Frank was innocent, he was beaten up by angry comrades.

  Modern writers about the case, many of them Jewish, have tended to lean heavily on anti-Semitism as an explanation for what happened. While not denying that there was a strong anti-Semitic streak in America at that time or that this may have been worse in the South than elsewhere, I believe that the same fate might well have befallen Frank had he been an Episcopalian. One of the things that contributed to Frank’s conviction was that Jim Conley was extremely convincing on the stand. He told a story that was complex, nuanced, intricate and rich in detail. He stuck to that story through days of intense cross-examination by excellent lawyers. He was a fantastic liar.

  To the people of the South in that era, nurtured in the belief that blacks were congenitally stupid, it was inconceivable that a black man could outsmart the police and the jury. Yes, he was an alcoholic. Yes, he was lazy and dishonest. Yes, he was a career criminal. Yes, he was uneducated. Yes, he lived normally in filth and squalor.

  But he was also clever. To people taught since birth to see blacks as inferior and of limited intelligence, it was inconceivable that this drunken, filthy, nearly illiterate black janitor could be smarter than most of them—but he was. Leo Frank was condemned more by boomerang racism than by anti-Semitism.

  Governor Slaton was a Southern aristocrat, a genteel man whose wife had made her social debut under the sponsorship of Robert E. Lee’s daughter. He was leaving office just as Frank’s appeal for clemency came to his desk. He knew that if he passed the matter on to his successor Frank would hang. He knew that Frank was innocent. He knew that if he signed the order he would be hated throughout the South, a pariah for the rest of his life. Before he signed the commutation he gave orders for Frank to be secretly moved to a prison farm on the far side of the state, as far away from Atlanta as one could get within the borders of the state. He called out the militia to surround his house, and signed the order commuting Frank’s sentence to life in prison. A mob marched on his house, perhaps a thousand strong. The militia turned them back. He left office a few days later, and left the state for many years, returning quietly to Atlanta in the late 1920s.

  A fellow prisoner stabbed Leo Frank in the neck, saying later that he had done so because he feared that the mob that came to kill Frank would kill them all. Frank survived that, and was on the road to recovery when he was seized by a group of orderly, determined men who invaded the prison camp on a paramilitary mission. They intended to hang him from the town square in Marietta, near where Mary Phagan had lived. Daylight caught up with them, and they had to stop a few miles short of Atlanta.

  A carnival atmosphere swept the site of the hanging. The people who hung him made little effort to conceal their identities. Photos were taken of Frank’s body hanging in the air, with other people easily identifiable in the photos. The photos were printed on postcards, which were sold until the 1950s. No one was ever prosecuted for that crime. The Knights of Mary Phagan believed that they had done a good thing. They had delivered justice to the murderer of an innocent young girl. A few weeks later, many or all of the same men re-organized themselves and applied for a charter from the state of Georgia in the name of a long-dormant Southern organization, the Knights of the Ku Klux Klan.

  Leo Frank had been president of the B’nai B’rith in Atlanta. The B’nai B’rith had been discussing the formation of an Anti-Defamation League. The murder of Frank led directly to the foundation of the Anti-Defamation League—as it did to the 20th century revival of the Ku Klux Klan—and the Anti-Defamation League was committed from its inception to the effort to stop lynching.

  Thus, the Mary Phagan case led very directly to the alliance between Jewish civic leaders and African-American civil rights leaders. That alliance remained strong into the late 1960s, and helped to shape many subsequent crime stories, including the Scottsboro Boys and the 1964 murders of Chaney, Goodman and Schwerner. Its influence went far beyond that. The support of Jewish leaders for African-American civil rights, organized after the death of Leo Frank, was pivotal throughout the civil rights era. The alliance between Jewish and African-American leaders began to crumble in the late 1960s, for reasons beyond my understanding.

  XI

  On March 26, 1916, Robert Stroud, incarcerated for an earlier murder, killed Andrew Turner, a guard at the federal prison in Leavenworth, Ks.

  A prisoner, as a rule, has limited resources to mount a defense. In 1916 a convicted murderer who killed a prison guard was a good candidate to be executed, probably within weeks. In this case the defendant’s mother, Elizabeth Stroud, made great sacrifices to raise a fund for Stroud’s defense.

  Stroud pleaded innocent, claiming “insanity and self-defense.” He was convicted and sentenced to hang. His attorney found an error in the judge’s instructions to the jury, however, and the case had to be re-tried.

  Now the authorities were really mad, so in the re-trial the prosecuting authorities went to unusual lengths to get a conviction. At this time prisoners were prohibited from testifying in federal court (as well as in most state courts). Most of the witnesses to Stroud’s murder of the prison guard were, of course, prisoners. Prosecutors solved this problem neatly enough by arranging to pardon half a dozen prisoners literally as they entered the courtroom, thereby making them no longer prisoners, thus eligible to testify. Stroud’s defense witnesses, if he had any, remained prisoners, thus unable to testify on his behalf.

  Stroud was convicted again, and sentenced to life in prison—not a bad sentence under the circumstances. Gambling, he decided to fight it out again, and the case went to the Supreme Court. The Supreme Court found unconstitutional the law prohibiting prisoners from testifying, and set aside Stroud’s conviction.

  Now the authorities were really, really mad. For the third time, Stroud went on trial for murdering Turner, and for the third time he was convicted. For the second time, he was sentenced to hang.

  By now it was 1920. Once more the Strouds went to battle, and once more the case reached the Supreme Court. This time Stroud lost. The Leavenworth authorities prepared to hang him.

  Elizab
eth Stroud, however, would not be defeated. Since her only recourse was for the President himself to commute the sentence, she started a letter-writing campaign, imploring the President to save her son. President Woodrow Wilson was bedridden following a stroke, and his wife was conducting the affairs of his office. Moved by Mrs. Stroud’s plight, she handed her husband the order commuting the sentence to life in prison, and suggested that he sign. Robert Stroud’s sentence was commuted to life in prison.

  Frustrated and angry, someone within the prison system ordered that Stroud should serve his life sentence in solitary confinement. Although this order had no legal standing, it became the basis for one of the most remarkable prison stories in American history. We will check in on Robert Stroud—The Birdman of Alcatraz—a few decades down the road.

  She liked to be called Grace Roberts, although her true name was Maizie Colbert, and upon her death the newspapers immediately reverted to calling her that. It depended on the newspaper; some called her Maizie, some Grace. She was the daughter of an unskilled laborer, born and raised in a small mining town in northwestern Pennsylvania. At the age of 17 she moved to Philadelphia, where she got into the business of modeling lingerie and modeling for artists. She became known as “The Onyx Girl” and “The Silk Stocking Girl”—onyx, for the black ink that represented her stockings in the engravings that appeared so often in the newspapers. She was said to have the most famous legs in America.

  She was in her mid-twenties when she died, hit in the head with a flatiron in her apartment in West Philly and then, ironically, strangled with a silk stocking. She left bloody fingerprints on the walls and curtains as she tried to escape. It was December 30, 1916. She didn’t answer phone calls for several hours, and her sister asked the janitor to crawl through a window into her apartment. Her body had been covered with a bed sheet, and a rubber tube from the gas jet put into her mouth in a crude effort to stage a suicide.