Why Should I Hang? Leo Frank and the Murder of Mary Phagan (pt. 8)

Motion for New Trial

Immediately after the verdict was announced Frank’s defense team issued a statement declaring:

The trial which has just occurred and which has resulted in Frank’s conviction was a farce and not in any way a fair trial.

The temper of the public mind was such that it invaded the courtroom and pervaded the streets and made itself manifest at every turn the jury made and it was just as impossible for this jury to escape the effects of the public feeling as if they had been turned loose and allowed to mingle with the people.

Frank’s execution was postponed while his attorneys prepared an application for a new trial. Their motion ultimately offered 115 reasons why the original verdict should be set aside. Among other claims, Rosser and Arnold asserted the inadmissibility of Conley’s testimony concerning Frank’s sexual habits and Dorsey’s innuendos regarding the two-week gap between Frank’s arrest and his wife’s first jailhouse visit.  They noted the repeated outbursts of cheering inside and outside the courtroom.  They presented an affidavit from Isaac Hazan declaring that he had heard ten or fifteen men yelling to the jury as they left the courtroom Friday that “unless they brought in a verdict of guilty, that they would kill the whole damn bunch.” And they pointed out that the very fact that they were encouraged to leave Frank safely at the Fulton County tower during the reading of the verdict showed the poisonous atmosphere surrounding the proceedings.

Rosser and Arnold also affirmed that two of the jurors, Atticus Henslee and Marcus Johenning, had entered the trial with prejudices against the defendant.  Eight people said they had heard Henslee affirm before the trial that he believed Frank to be guilty: Samuel Aaron recalled Henslee saying at the Atlanta Elks club “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.” Johenning’s coworker C.W. Lovenhart stated that Johenning said in a May discussion of the Phagan murder that “I know [Frank is] guilty.”


The prosecution responded with an affidavit from Fred Winburn attesting that, far from being prejudiced, Henslee had been the sole dissenting vote on the first ballot. He followed that with affidavits from every other juror supporting Winburn’s claim.  Each of the jurors denied that he had been influenced by the restless spectators: to a man they repudiated Hazan’s claim that they had been threatened at any time by the crowd.  Dorsey then added Henslee’s affidavit, wherein he said

I emphatically deny that I [called Frank a “God damn Jew”] at any time or place; I am a member of the Elk’s Club; said Club has among its members a large number of Jewish people, many of whom are my friends. I never entertained any prejudice or animus against the Jewish people, or against any one of them, and I did not make use of any such expression before said Aaron or anybody else.

johenningJohenning (who noted that the Lovenharts were “of the same race and religion as Leo M. Frank,” acknowledged speaking to Jennie Lovenhart and her daughter Miriam, but claimed that it was an innocent conversation:

Mrs. Lovenhart said to me, “What do you think of the Frank case?” and I answered her, “By the papers they have found him guilty already.” Then she said, “I cannot look at it that way, I think he is innocent.”  Then the daughter spoke up and said, “What do you think about it, Mr. Johenning?”, and I told the daughter that I thought he would have a hard time getting loose, that things did not look very bright for him.  I said “I have only read the papers, and that is all I know about it.”  Then Mrs. Lovenhart said she was afraid he would not get a fair trial. Then I said to her that it was little less than two weeks till the trial, then we would all know whether he was innocent or guilty.

For two months Roan considered these 115 claims.  He examined the supporting and refuting evidence: he weighed the arguments presented by each side.  Finally, on October 31, 1913 he issued his decision. Speaking in a trembling voice before a packed but quiet courtroom, Roan declared:

I have thought about this case more than any other I have ever tried. With all the thought I have put on this case, I am not thoroughly convinced that Frank is guilty or innocent. But I do not have to be convinced. The jury was convinced. There is no room to doubt that.   I feel that it is my duty to order that the motion for a new trial be overruled.

Rosser and Arnold immediately announced plans for an appeal to the Georgia Supreme Court: they also declared their intent to include Judge Roan’s admission of doubt in their motion.  Dorsey protested: Roan overruled him and ordered that his remarks be preserved in the record.  It was a stunning comment from one of Georgia’s most respected judges, and provided the defense with a beacon of hope in an otherwise grim situation.  There was considerable precedent for the Georgia Supreme Court overturning  convictions obtained despite the stated doubts of a trial judge.  Roan’s reputation for fair-mindedness and diligence would certainly weigh heavily in the accounting of the justices:  surely they would not hang a man when the presiding judge felt he might be innocent.

If Judge Leonard Roan had doubts about Frank’s guilt, Atlanta’s Jewish community was convinced of his innocence and certain he was yet another the victim of the old prejudices.   Frank’s rabbi, David Marx, traveled to New York to raise awareness of what he considered an American Dreyfus affair.  Among the people he met were Adolf Ochs, publisher of the New York Times and Louis Marshall, chairman of the American Jewish Committee.  Marshall raised the issue at a November 8 Committee meeting: several of New York’s wealthiest and most powerful Jews discussed the Leo Frank case and what they could do to free a wrongfully convicted man.  While they resolved to take no public action at the present time, they began reaching out privately to wealthy Jews across the nation in hopes of setting up a network to support Frank through the ongoing appeals process and of raising public awareness of Frank’s plight



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9 thoughts on “Why Should I Hang? Leo Frank and the Murder of Mary Phagan (pt. 8)

  1. I have yet to read all of your posts but appreciate the info about Atticus Henslee’s prejudicial remarks at the Elks and attempts to nullify their import.
    The ultimatum and threats to the purportedly sequestered venire overheard by Isaac Hazan is of value in assessing whether Oliver Wendell Holmes was correct in his dissent with Charles Evans Hughes of Lynch Law dispensed by an impaneled jury as no better than that of a lynch mob intent on murder.
    Thank for the rare images I will definitely read every one of your posts. I have no website but I am presenting the linkage between the Leo Frank and Mary Turner lynchings
    Thank you


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