This year marks the 100th anniversary of the conviction of Leo Frank, one of the most troubling cases in American legal history. The Frank case is known for its grisly culmination: In 1913, after Frank was convicted of murdering a young woman who worked in the factory he managed, he was sentenced to death. Following a series of unsuccessful legal appeals, Frank’s death sentence was commuted to life in prison by the Governor of Georgia in June 1915.
Although the Governor’s actions saved Frank from execution by the State, he lived for just two more two months. In August 1915, a group of men broke into the prison holding Frank, seized him, and drove across Georgia to the outskirts of Marietta, the town where the dead girl’s family had lived. On the morning of August 17, about a half-day after he was taken from prison, Frank was lynched.
Frank was Jewish; the lynching was especially shocking to the Jewish community in the South. Among other things, it breathed life into the Anti-Defamation League, which had been founded in 1913. (It also inspired the Ku Klux Klan to burn a cross on Stone Mountain in Georgia, reviving an organization that had disbanded after home rule was restored to the South after the Civil War.)
Understandably, the history of the Frank case focuses on its horrific conclusion. Nevertheless it is important to note the legal significance of the Frank case as well. There are two key lessons to draw from the trial of and appeals taken by Leo Frank during the course of the case.
This column provides a brief account of Frank’s trial, sentencing, and subsequent appeals. It then examines the legal significance of Frank’s case in articulating—albeit in a dissent by Justice Oliver Wendell Holmes, Jr.—a broad scope for federal habeas corpus review of a criminal case that had been litigated in the state court system. Finally, the column discusses how the case illustrates the limits associated with the diffusion of decision-making authority in the criminal justice system.
In writing this column, I have relied on Steve Oney’s And the Dead Shall Rise, a comprehensive and lucid account of the Leo Frank case. Oney’s book provides a superb reconstruction of the entire affair. (Disclosure : In 2011, I invited Oney to participate in a panel session on the Frank case for Touro Law Center’s conference on “Persecution through Prosecution,” which also explored the Alfred Dreyfus case in great detail.)
In April 1913, Frank was the superintendent of the National Pencil Company, a factory that operated in downtown Atlanta. Frank, who was born in Texas in 1884 and raised in Brooklyn, moved to Atlanta in 1908 to work at National Pencil. In 1910, he married Lucille Selig, a local Jewish woman, and they enjoyed the life of prosperous Jews.
Mary Phagan, a 13-year old young woman, was one of many employees under Frank’s supervision at National Pencil. She lived with her family in a working-class neighborhood northwest of downtown Atlanta. On April 26, 1913, a Saturday, Phagan went to the factory to pick up her pay. Frank was at the factory that day, as usual on Saturdays. Phagan did collect her pay, but she never was seen alive after that.
Her body was discovered in the early hours of the next morning, Sunday, in the factory basement. Phagan had been strangled; according to Oney, “her dress was hitched up around her knees” and her face had been battered. Next to Phagan were two handwritten notes that apparently implicated a “long[,] tall[,] black negro” in the murder. The Atlanta police initially focused their investigation on two men: the black watchman who found the body, who soon was cleared of any involvement in the crime, and a black employee who worked in the factory, Jim Conley.
On April 29, however, the police arrested Frank for the murder of Phagan. The key witness against Frank, both during the investigation and at trial, was Conley. Conley gave no less than four different sworn statements about the murder while he was in custody; ultimately his story was that Frank murdered Phagan after she resisted his advances and that Frank had asked Conley to help move the body.
At the trial in August 1913, Conley elaborated on this testimony, providing lurid details that heightened the already sensational atmosphere surrounding the trial. As Oney details, the case represented an extraordinary set of cultural conflicts: the defendant was a well-to-do Jewish outsider who worked as a factory manager; the victim was his employee, a young, lower-class woman who embodied Southern womanhood; and the accuser was a black employee who, despite his changing story, withstood a withering cross-examination at trial.
The public’s (somewhat prurient) interest in the case was stoked by extensive testimony about Frank’s character. The prosecution presented witnesses who said Frank was immoral, known for harassing women who worked at the factory. The defense vigorously contested these charges and insisted that Frank was an industrious, upstanding citizen who was innocent of any crime.
By the time the parties had concluded presenting their cases, the crowd in and around the courtroom was openly hostile to Frank. The trial court judge met with the lawyers, and it was agreed that neither Frank nor his lawyer should be in court when the jury delivered its verdict. The judge was concerned that an acquittal could send the crowd into a frenzy that would endanger them.
Of course, the jury entered a guilty verdict, leading to cheers from thousands in the crowd outside the courtroom. A day later, Frank was sentenced to death by the judge. Frank and his lawyers vigorously appealed the conviction and the sentence, litigating post-trial appeals in the trial court, the Georgia Supreme Court, and—on the appeal of a denial of a federal habeas corpus petition—the United States Supreme Court. As noted earlier, Frank’s legal appeals failed but his sentence was commuted to life in prison.
Today, the conventional view is that Frank was innocent of the crime and Conley killed Phagan. Oney argues that although this view likely is correct, it is impossible to fully corroborate. In 1986, the Georgia State Board of Pardons and Paroles pardoned Frank “in recognition of the State’s failure to protect [his] person” but nevertheless did not attempt “to address the question of guilt or innocence.”
Justice Holmes’s (Dissenting) View of the Scope of Federal Habeas Corpus Review
One legal legacy of the Frank case is principally historical. It was one of the earliest cases to seriously consider expanding the scope of federal habeas court review of a state court judgment of conviction after the case had been fully tried and litigated in the state court system.
In his habeas corpus petition, Frank said essentially that he had been tried in a mob setting in violation of his constitutional right to due process and sought a new trial. The federal district court denied Frank’s request, and the Supreme Court affirmed this decision by a 7-2 vote.
That decision was not surprising. Frank’s request presented novel questions of law and would have required the United States Supreme Court to authorize proceedings that could have disturbed a case that had been fully litigated in Georgia’s judicial system (and included appeals before courts that were not subject to the influence of a hostile crowd).
In dissent, Justice Holmes—joined by Justice Charles Evan Hughes, who later served as Chief Justice from 1930 through 1941—argued that the conviction should be set aside because the hostility present in the courtroom during the trial prevented Frank from receiving a fair trial.
Although Holmes’s dissent focused on the application of the factual allegations made in the petition to the relevant law, it nevertheless would have enlarged the scope of federal habeas corpus review had it received three more votes and been the majority opinion. In support of his position, Holmes wrote, “habeas corpus cuts through all forms . . . [and] comes in from the outside, not in subordination, to the [prior state court] proceedings,” and inquires as to “whether they have been more than an empty shell.”
Subsequently, in fact, the Court adopted this broader view eight years later in Moore v. Dempsey in a decision written by Holmes. This more expansive understanding of the availability of habeas corpus became an important aspect of 20th century constitutional and civil rights jurisprudence. (It must be noted that this broader approach to habeas corpus has been curtailed by Congress and the Supreme Court and does not apply today.)
A Reminder of the Limits of Diffuse Decision-Making Responsibility in the Criminal Justice System
Another legal legacy of the Frank case also continues to be relevant today. The fact that a conviction arrived after a problematic trial never was set aside on appeal serves as a reminder of the limits associated with the diffusion of decision-making responsibility in criminal cases. To recap: Despite the public hostility shown to Frank during the trial, the case was sent to the jury for a verdict. The jury convicted Frank. On post-trial motions, the trial court—despite professing uncertainty about the correctness of the verdict—still refused to set aside the conviction.
Frank had two very plausible claims for, at a minimum, a new trial. The case had been tried in a compromised atmosphere and therefore a mistrial should have been declared and a new trial ordered. In addition, after the jury entered its verdict, the trial court judge questioned whether Frank in fact was guilty, providing additional support for setting aside the jury’s verdict and either holding a new trial or dismissing the case against Frank.
Indeed, as Oney describes, it was believed that by expressing uncertainty, the trial court judge was inviting the Georgia Supreme Court to grant a motion for a new trial. But the State Supreme Court affirmed the conviction, essentially saying that all of the grounds for a new trial had been sufficiently addressed by the trial court.
Despite subsequent appeals, no court could be convinced to set aside the conviction and ultimately the U.S. Supreme Court held that it lacked the power to order a new trial. Thus, in the end, Frank’s only recourse was to an entirely discretionary review by the Governor.
In the trial court, the legal system divides authority between the court and the jury in order to protect the defendant’s constitutional right to a jury of his peers and to ensure that the judge does not have exclusive control over the defendant’s fate. Appellate courts review legal issues de novo but must defer to the trial court’s findings of fact—another division of decision-making authority that is based upon the functional expertise of trial courts as compared to appellate courts that also is intended to prevent a judge (or set of judges) court from controlling the defendant’s fate.
The notion of limited and divided authority is, properly, venerated in our legal system. In the Frank case, however, the courts unduly deferred to the jury’s verdict despite the problematic atmosphere in which it was delivered. The Leo Frank case reminds us that this division of decision-making authority is far from perfect and that we must not lose sight of justice as the end of these means.