July 1, 2020

The Leo Frank Case

Leo Frank

The Leo Frank case is one of the most notorious and highly publicized cases in the legal annals of Georgia. A Jewish man in Atlanta was placed on trial and convicted of raping and murdering a thirteen-year-old girl who worked for the National Pencil Company, which he managed. Before the lynching of Frank two years later, the case became known throughout the nation. The degree of anti-Semitism involved in Frank's conviction and subsequent lynching was enough of a factor to have inspired Jews, and others, throughout the country to protest the conviction of an innocent man.

The Murder

On April 26, 1913, Mary Phagan, the child of tenant farmers who had moved to Atlanta for financial gain, went to the pencil factory to collect her week's wages. Leo Frank, the superintendent of the factory, paid her. He was the last person to acknowledge having seen Phagan alive. In the middle of the night, the factory watchman found her bruised and bloodied body in the cellar and called the police. The city was aghast when it heard the news. Rumors spread that she had been sexually assaulted before her death. The public demanded quick action and swift justice.

The Evidence

Because eyewitness accounts placed  both Frank and Phagan at the factory prior to her death, police arrived at Frank's home early on April 27 for questioning. Frank denied knowing Phagan by name, but police reported that he seemed nervous. Detectives then took Frank to the morgue to view Phagan's body and to the scene of the crime, where they observed his behavior, before concluding, for the time being, that he was not likely the murderer.  
Frank was not arrested until April 29, the evening of Phagan's funeral, when public outrage regarding her murder reached a fever-pitch. Under pressure to solve the case, detectives re-examined information they had been given earlier. A young worker said she did not see Frank when she came in shortly after Phagan to receive her pay, despite Frank saying he had stayed at the factory for at least twenty minutes after Phagan left. The night watchman said Frank called the factory later in the day on April 26 to see if everything was alright, which he had never done before. On the basis of this evidence, Leo Frank was arrested. 
Prior to Frank's arrest, four men were arrested in conjunction with Phagan's murder between April 27 and 28, 1913: Arthur Mullinax, a streetcar conductor who was seen with Phagan the night before she died; Newt Lee, the black night watchman who discovered Phagan's body; John Gantt, a former bookkeeper at the factory; and Gordon Bailey, an elevator operator at the factory. On May 1 Jim Conley, a black janitor at the pencil factory, was arrested after he was found rinsing what appeared to be bloodstains out of a shirt. However, Conley was not charged and was the state's main witness against Frank, providing at least four contradictory affidavits explaining how Frank forced him to help dispose of Phagan's body.

The Trial

Based  mainly on the testimony of the janitor, who had been held in seclusion for six weeks before the trial on orders from Solicitor General Hugh M. Dorsey, the jury convicted the defendant. Frank's attorneys were unable to break Conley's testimony on the stand. They also allowed evidence to be introduced suggesting that Frank had many dalliances with girls, and perhaps boys, in his employ.
Atlantans hoped for a conviction. They surrounded the courthouse, cheered the prosecutor as he entered and exited the building each day, and celebrated wildly when the jurors, after twenty-five days of trial, found Frank guilty.

The Appeals

Within weeks of the trial's outcome in early September, friends of Frank sought assistance from northern Jews, including constitutional lawyer Louis Marshall of the American Jewish Committee. Marshall gave advice about what information to include in the appeal, but Frank's Georgia attorneys ignored his counsel. Frank's lawyers filed three successive appeals to the Supreme Court of Georgia and two more to the U.S. Supreme Court, all on such procedural issues as Frank's absence when the verdict was rendered and the excessive amount of public influence placed on the jury. Ultimately the U.S. Supreme Court, still on procedural grounds, denied Frank's appeals; however, a minority of two, Oliver Wendell Holmes and Charles Evans Hughes, dissented. They noted that the trial was conducted in an atmosphere of public hostility: "Mob law does not become due process of law by securing the assent of a terrorized jury."

The Governor's Decision

When  all the court appeals had been exhausted, Frank's attorneys sought a commutation from Georgia governor John M. SlatonThomas E. Watson, a former Populist and the publisher of the Jeffersonian, had conducted a campaign denouncing Frank that struck a chord, and Georgians responded to it. Watson's accusations against Jews and Leo Frank, in particular, increased the paper's sales and elicited enormous numbers of letters praising him and his publication. As Watson continued to fan the flames of public outrage, his readership grew. By the time Slaton reviewed the case, there was tremendous pressure from the public to let the courts' verdicts stand.
Slaton reviewed more than 10,000 pages of documents, visited the pencil factory where the murder had taken place, and finally decided that Frank was innocent. He commuted the sentence, however, to life imprisonment, assuming that Frank's innocence would eventually be fully established and he would be set free.
Slaton's decision enraged much of the Georgia populace, leading to riots throughout Atlanta, as well as a march to the governor's mansion by some of his more virulent opponents. The governor declared martial law and called out the National Guard. When Slaton's term as governor ended a few days later, police escorted him to the railroad station, where he and his wife boarded a train and left the state, not to return for a decade.

The Lynching

After Slaton's commutation, Frank was interned at a prison farm in Milledgeville for just under two months. During his internment, a fellow prisoner slashed Frank's throat with a knife, though he survived. Frank's stay at the prison farm was cut short on the night of August 16, 1915, when twenty-five prominent citizens of Marietta, identifying themselves as the Knights of Mary Phagan, caravanned to Milledgeville, took Frank from his cell, and drove him back to Marietta, Phagan's hometown, where they hanged him from an oak tree. Only months later, many of these same men would take part in the nighttime ceremony at Stone Mountain that established the modern Ku Klux Klan.
A crowd of nearly three thousand people gathered the next morning in Marietta to view Frank's hanging body. The crowd grew increasingly unruly, and undertakers had to wrestle Frank's body away before it could be further battered. 


The  Frank case not only was a miscarriage of justice but also symbolized many of the South's fears at that time. Workers resented being exploited by northern factory owners who had come south to reorganize a declining agrarian economy. Frank's Jewish identity compounded southern resentment toward him, as latent anti-Semitic sentiments, inflamed by Tom Watson, became more pronounced. Editorials and commentaries in newspapers all over the United States supporting a new trial for Frank and/or claiming his innocence reinforced the beliefs of many outraged Georgians, who saw in them the attempt of Jews to use their money and influence to undermine justice.
Frank's trial had far-reaching impacts. It struck fear in Jewish southerners, causing them to monitor their behavior in the region closely for the next fifty years—until the civil rights movement led to more significant changes. But it also inspired the formation of the Anti-Defamation League, one of the nation's foremost civil rights organizations.
In 1986 the Georgia State Board of Pardons and Paroles pardoned Frank, stating:
Without attempting to address the question of guilt or innocence, and in recognition of the State's failure to protect the person of Leo M. Frank and thereby preserve his opportunity for continued legal appeal of his conviction, and in recognition of the State's failure to bring his killers to justice, and as an effort to heal old wounds, the State Board of Pardons and Paroles, in compliance with its Constitutional and statutory authority, hereby grants to Leo M. Frank a Pardon.
The pardon was motivated in part by the 1982 testimony of eighty-three-year-old Alonzo Mann, who as an office boy had seen Jim Conley carrying Mary Phagan's body to the basement on the day of her death. Conley had threatened to kill Mann if he said anything, and the boy's mother advised him to keep silent. For those who thought Frank innocent, this provided confirmation; for those who believed him guilty, this was insufficient evidence to change their views.
The case inspired several scholarly treatments by historians and also made its way, through various media, into the popular culture. In 1915 Georgia musician Fiddlin' John Carson wrote a ballad about Mary Phagan, which he performed on the steps of the state capitol to protest the commutation of Frank's sentence. Ten years later the song was recorded as "Little Mary Phagan" by Moonshine Kate, Carson's daughter, and around the same time Carson recorded a related song, "The Grave of Little Mary Phagan."
Other popular interpretations of the case include the film They Won't Forget (1937), based on Ward Greene's fictionalized account Death in the Deep South (1936), with Lana Turner playing the victim in her first credited screen role; the television mini-series The Murder of Mary Phagan (1988), starring Jack Lemmon as Governor John Slaton; two novels—Richard Kluger's Members of the Tribe (1977), a detailed reconstruction of the case, but set in Savannah rather than Atlanta, and David Mamet's The Old Religion (1997), in which a fictionalized Frank tells his story in the first person; and Atlanta playwright Alfred Uhry's Broadway musical Parade (1999), the title a reference to both the Confederate Memorial Day parade that brought Mary Phagan to town and the lynch mob that took Frank from Milledgeville to Marietta.
In 2008 the William Breman Jewish Heritage Museum in Atlanta opened a special exhibition entitled Seeking Justice: The Leo Frank Case Revisited, and in 2009 an episode of the PBS series American Experience entitled "The People v. Leo Frank" premiered in Atlanta, where the program was also filmed.
Original entry by
Leonard Dinnerstein, University of Arizona, Tucson, Arizona, 

March 16, 2020

This Is Significant

Hon. James Dannenberg
Hon. James Dannenberg, Ret.

Former Judge James Dannenberg resigned from the Supreme Court Bar effective this last Wednesday. In a letter to Chief Justice John Roberts, he detailed why he has lost respect for the court.

Dannenberg has a long legal career history. He is a retired Hawaii state judge, who sat on the District Court of the 1st Circuit of the state judiciary for 27 years. Prior to that he was Deputy Attorney General for the State of Hawaii and served as an adjunct professor at the University of Hawaii Richardson Law School. He frequently appeared before the SCOTUS in person and  as signatory on briefs, acting as part of what is considered to be the most prestigious association of attorneys in the country, the Supreme Court Bar. The lawyers of the Bar stand as "a sprawling national signifier" of the legitimacy of the SCOTUS. Dannenberg  had been a member of that bar since 1972.

On Wednesday he submitted a letter of resignation from the Bar to Chief Justice John Roberts. The full text of the letter follows:

The Chief Justice of the United States
One First Street, N.E.
Washington, D.C. 20543

March 11, 2020

Dear Chief Justice Roberts:

I hereby resign my membership in the Supreme Court Bar.

This was not an easy decision. I have been a member of the Supreme Court Bar since 1972, far longer than you have, and appeared before the Court, both in person and on briefs, on several occasions as Deputy and First Deputy Attorney General of Hawaii before being appointed as a Hawaii District Court judge in 1986. I have a high regard for the work of the Federal Judiciary and taught the Federal Courts course at the University of Hawaii Richardson School of Law for a decade in the 1980s and 1990s. This due regard spanned the tenures of Chief Justices Warren, Burger, and Rehnquist before your appointment and confirmation in 2005. I have not always agreed with the Court’s decisions, but until recently I have generally seen them as products of mainstream legal reasoning, whether liberal or conservative. The legal conservatism I have respected– that of, for example, Justice Lewis Powell, Alexander Bickel or Paul Bator– at a minimum enshrined the idea of stare decisis and eschewed the idea of radical change in legal doctrine for political ends.

I can no longer say that with any confidence. You are doing far more— and far worse– than “calling balls and strikes.” You are allowing the Court to become an “errand boy” for an administration that has little respect for the rule of law.

The Court, under your leadership and with your votes, has wantonly flouted established precedent. Your “conservative” majority has cynically undermined basic freedoms by hypocritically weaponizing others. The ideas of free speech and religious liberty have been transmogrified to allow officially sanctioned bigotry and discrimination, as well as to elevate the grossest forms of political bribery beyond the ability of the federal government or states to rationally regulate it. More than a score of decisions during your tenure have overturned established precedents—some more than forty years old– and you voted with the majority in most. There is nothing “conservative” about this trend. This is radical “legal activism” at its worst.

Without trying to write a law review article, I believe that the Court majority, under your leadership, has become little more than a result-oriented extension of the right wing of the Republican Party, as vetted by the Federalist Society. Yes, politics has always been a factor in the Court’s history, but not to today’s extent. Even routine rules of statutory construction get subverted or ignored to achieve transparently political goals. The rationales of “textualism” and “originalism” are mere fig leaves masking right wing political goals; sheer casuistry.

Your public pronouncements suggest that you seem concerned about the legitimacy of the Court in today’s polarized environment. We all should be. Yet your actions, despite a few bromides about objectivity, say otherwise.

It is clear to me that your Court is willfully hurtling back to the cruel days of Lochner and even Plessy. The only constitutional freedoms ultimately recognized may soon be limited to those useful to wealthy, Republican, White, straight, Christian, and armed males— and the corporations they control. This is wrong. Period. This is not America.

I predict that your legacy will ultimately be as diminished as that of Chief Justice Melville Fuller, who presided over both Plessy and Lochner. It still could become that of his revered fellow Justice John Harlan the elder, an honest conservative, but I doubt that it will. Feel free to prove me wrong.

The Supreme Court of the United States is respected when it wields authority and not mere power. As has often been said, you are infallible because you are final, but not the other way around.

I no longer have respect for you or your majority, and I have little hope for change. I can’t vote you out of office because you have life tenure, but I can withdraw whatever insignificant support my Bar membership might seem to provide.

Please remove my name from the rolls.

With deepest regret,

James Dannenberg

For those unfamiliar, the Lochner era was a roughly three decade period of time following the decision in Lochner v. New York, 198 US 45 (1905). Lochner was a labor law case where a split 5/4 Court effectively invalidated all state laws that limited the number of hours an employee could be required to work. The Court effectively overruled itself in the 1934 decision in Nebbia v. New York.

Dannenberg's mention of Plessy refers to Plessy v. Ferguson, 163 U.S. 537 (1896), in which the segregationist doctrine of Separate but Equal was codified.

Image result for plessy v ferguson cartoon
Plessy v. Ferguson Relegated People of Color to a Separate But Equal Railcar. The badly flawed decision became the legacy of Chief Justice Melville Fuller

This resignation accompanied by Dannenberg's rebuke is a serious shot across the bow. Chief Justice Roberts is, I feel certain, rightly concerned about his legacy. The references to Lochner and to Plessy are subtle reminders that decisions made by the Court that are later viewed as flawed tend to stain the legacy of not just the Court, but the Chief Justice in particular.

Since Dannenberg is just the latest of several hundred retired judges, justices, and constitutional scholars to chastise the Court, Roberts would do well to consider a course correction before it is too late.


February 24, 2020

While Decent White People Were Sleeping, The Bigots Stole America

Author John Pavlovitz 
Published 16 February, 2020

It’s morning in America. 

A lot happened while we were sleeping. 

This is not the America we thought existed back in November of 2008—likely the last time many of us were fully awake. 

Back then, we basked in the warm glow of the reality of a black President and we grew comfortable, nestling down into a complacency that only the blind spots of privilege and false information provide. 

The joy of that moment became a slow-acting emotional sedative that slowly squeezed out the urgency from us; one that gradually dulled our senses, that day by day numbed our minds into imagining we had arrived together at Martin’s glorious mountaintop. If we had taken the time to ask vulnerable people, they’d have told us not to fall asleep. 

Believing that the aspirational “we shall overcomes” that once rang out, were now a fixed and unchangeable present, we settled cozily into that place where the heart rate slows and the limbs and eyelids grow heavy—and where without realizing it, slumber suddenly overtakes you: 

one blink awake, the next blink asleep. 

And for eight years we sleepwalked through the world, physically here and moving through daylight but not fully present, not totally seeing—caught between the actual and the unreal world, between the real nightmare and the imagined dream. Yes, we still talked and marched and campaigned and worked, but we did so slightly sedated in the haze of bad stories, willful ignorance, and wishful thinking. 

Meanwhile, the bigots woke up. 

Shaken violently from sleep in November 2008, by the reality of what decades of fear and terrible theology taught them was the absolute worst place they could find themselves—they began to mount a fierce counterattack. 

They created news outlets and social media platforms designed to filter out everything except that which would fully trigger terror within the hearts of their intended targets and would-be allies: 

fantastical stories of a pervasive and coordinated Gay Agenda coming to convert their children; 

of violent, heavily armed, brown-skinned drug gangs overrunning our borders; 

of godless, abortion-mad progressives having indiscriminate sex without fear or care; 

of Muslim terrorist hordes infiltrating our neighborhoods and bodegas; 

of America-hating Democrats coming for their jobs and flags and prayers and guns. 

And we were still sleepwalking… 

They leveraged thousands of Christian pulpits, where every seven days they’d wildly stoke the fires of people’s phobias and fears, weaponize the Scriptures against gays and migrants and Muslims, pervert the expansive Gospel of Jesus into rabid nationalism—and sermon by sermon, enlist them all into service as passionate soldiers in the Army of the straight, white, American, male Lord. 

And we were still sleepwalking… 

Then, to inculcate the terror fully, they propped up a sideshow carnival barker as their chosen one; a barren, empty husk of a man with no discernible moral convictions beyond wealth accumulation—who they could use as a flesh and blood avatar to embody and perpetuate themselves. 

They fashioned a vile, blustery orange idol to rally the fearful and the angry and the callous hearts around; one who would daily dig into the stinking muck to find a deeper bottom—and in the sleep-induced state we were in we thought it was a joke. We laughed ourselves back into a dreamworld where everything would be fine and where decency would prevail and where the system would work; so much so that one hundred million of us slept all the way through an election cycle. 

And here we are. 

I wonder if we’re fully awake now. 

I wonder if we’re ready to cast off the cobwebs of our complacency and enter fully into the bloody fray in front of us. 

I wonder if we’re willing to rouse ourselves into lucidity and step into the jagged trenches of the fight of our lives and for the disparate swath of humanity who we’ve let down. 

I wonder if we’re prepared to face our culpability and admit our failures and make amends with our time and our resources and our votes. 

Or maybe we’ll just find another way to anesthetize. Maybe we’ll self-medicate on social media and reality TV and two-for-one happy hour specials and puppy photos on social media, and again retreat into the comfortable places and once more grow so sleepy that we’ll nestle back into slumber. 
I wonder if there’s still time to undo the present nightmare. 

The only way we’ll have a chance to know is if we wake up and stay awake. 

It’s morning in America. 

There’s mourning in America. 

Rise and shine.