You Are There: Atlanta Journal, June 12th, 1913 – Little Mary Phagan

Court's Order May Result in Meeting of Negro and Frank

Atlanta Journal
Thursday, June 12th, 1913

Jim Conley, Negro Sweeper, Accusing Witness in Phagan Case, Sure to Appear Before Judge Roan Friday A. M.

STATE MAY DEMAND THAT FRANK APPEAR THERE TOO

Through Judge's Order, Defense Gets Chance to Quiz Negro—State Then May Force Long-Sought Meeting

The probability that Leo M. Frank, accused of the murder of Mary Phagan, and Jim Conley, negro witness against him, may face each other Friday, developed Thursday morning from the acute situation which arose Wednesday when Judge L. S. Roan issued a rule niel calling on any one to show cause why the negro Conley should not be released from the custody of the state. Solicitor Dorsey seeks the negro's release so as to avert the judge's expressed intention of remanding Conley to the county jail, but the solicitor does not seek the negro's liberty, nor does Conley want to get out of the hands of the police, nor does Conley's attorney, W. M. Smith want him liberated.

The rather puzzling matter assumed this shape Thursday morning.

NEGRO SURE TO BE THERE.

Conley, the negro, who says he does not want to go free, but who declares he is afraid to go back to the tower, is certain to be called into the hearing before Judge Roan at 10 o'clock Friday on the rule nisi.

The solicitor wants him there, it is expected, to prove alleged intimidation and threats against Conley on a former occasion when for one night immediately following his confession the negro was confined in the Fulton county tower.

And the attorneys defending Frank want him there, it is expected with equal confidence, to learn from him all that he knows or claims to know about the case, which is precisely the thing that the solicitor's fight is aimed entirely to avoid. The Frank defense has published statements alleging that the negro himself is the principal in the murder and that he alone is guilty.

Therefore, with Conley in chambers before the judge, Solicitor Dorsey can, it is said, have Leo M. Frank brought there, because Frank is the first among those addressed by Judge Roan in the rule nisi and the solicitor can find legal precedent for demanding that Frank speak his own accusations against the negro on that occasion.

Which would bring about the situation that the state and its officers constantly have been seeking to create when Conley first admitted that he wrote the notes found beside Mary Phagan's dead body, i. e., a face to face meeting between the negro and the man whom he accuses of the murder.

MAY BE REAL CRISIS.

Thus may a real crisis in the Phagan investigation be reached Friday morning if Judge Roan withdraws his rule nisi and grants the petition of Solicitor Dorsey without further hearing; if Conley is not summoned into court or is not permitted there, then the indicated meeting between accused and accuser will not take place. Otherwise, it seems to be very probable.

There is doubt that the attorney for Leo M. Frank will take active part in the proceedings. They are Luther Z. Rosser, Herbert Haas, and possibly others. None of them will discuss the matter for publication.

But it is a safe assertion that if they do not address the court openly there will be other attorneys in court in behalf of the public, perhaps, who will do so and who will advance quite actively the points in which the attorneys defending Frank are interested. The endeavor will be not only to learn all that the negro knows or claims to know, but to show by his own testimony if possible that he committed the murder.

This hearing on the rule nisi, involving the first open battle between the state and the Frank defense, is set for 10 o'clock Friday morning before Judge Roan in chambers. It is said to be certain that Luther Z. Rosser, leading counsel for Frank, will be there, though no positive announcement has emanated from him to this effect.

SOLICITOR CALLS WITNESSES.

The followed were subpenaed by Solicitor Dorsey, Thursday morning, to appear before Judge Roan in chambers at 10 o'clock Friday morning at the rule nisi hearing.

John W. Moore, an attorney of Atlanta.

Michael D. Clofine, city editor of the Atlanta Georgian.

William P. Flythe, a reporter for the Georgian.

Solicitor Dorsey declined flatly to state why these citizens were summoned to court by him.

"If it becomes necessary to question them, I will question them," said he. "Otherwise I have no intention of making public what I want to have their sworn testimony upon."

The solicitor declared that he is determined to stand solidly upon the position already taken by himself—that he, and the negro Conley and Conley's lawyer, all want Conley to remain in custody at police headquarters, and not at the Tower, and that that is sufficient.

NO LIBERTY FOR NEGRO.

The solicitor general has announced in open court that if his petition is granted that Conley will be released technically but that he will be immediately rearrested and held at the police headquarters on "suspicion."

It is said that counsel for the defense of Frank will contend that if anyone is going to hold the negro Conley he should be incarcerated according to the strict letter of the law in the Fulton county Tower, held there as a material witness on an order of a judge of the superior court.

In the Phagan case there is said to have been much legal maneuvering "under the surface" practically from the first, and if the defense of Frank answers the rule nisi Friday a lively clash of attorneys is almost certain, and it is not improbable that the underground maneuvers will be brought to the surface.

The legal maneuvering in the case shows this situation:

Judge Roan doubts the legality of holding Conley at police headquarters, it being argued that the jail is the only place where the negro can be confined legally.

Solicitor Dorsey does not want the negro to be taken from police headquarters to the tower.

Neither does Conley's attorney, W. M. Smith, desire a transfer. However, as the legality of the negro's present incarceration is in question, Solicitor Dorsey has asked the order revoking the former order.

EFFECT OF ORDER.

Had this been granted, the court could not be involved in the case and the city detectives could have held Conley at police headquarters unless a writ of habeas corpus was taken out for or by him.

As the negro wants to stay at police headquarters, and his attorney wants him to stay there, there would naturally be no habeas corpus taken for him, and Conley would have remained a prisoner at police headquarters until Leo M. Frank's trial.

There is little probability it now appears of the negro's being indicted as an accessory after the fact for the reason that then he would have a right to demand bond.

Judge Roan's decision to issue the rule nisi calling on the public generally to contest the solicitor's petition to take the negro out of the state's hands, precipitates an unusual and interesting situation.

The issue can be contested properly by Frank's attorneys or by any citizen in the county and the fight to keep the negro in police station and away from the jail may cause a lively hearing next Friday.

Judge Roan's first order in the case was issued on a petition of the solicitor that Conley be held as a material witness. Conley was then removed to the tower. On an order granted two days later Conley was carried back to police headquarters. If both of these orders are revoked Conley will be technically at liberty, but as a matter of fact he will be immediately rearrested by the city detectives and held on a charge of "suspicion." Legally he will then not figure in the Phagan case until carried to the court house to testify against Frank.

SOLICITOR'S STATEMENT.

Solicitor Dorsey explained to the court that he was satisfied with the order erquiring [sic] Conley to be held as a material witness, because he regards Conley as a material witness; but that he did not want Conley transferred to the tower for two reasons: First, that Conley had told him, the solicitor, with what truth the solicitor did not know, that he had been intimidated and threatened in the jail; and second, that Conley's own attorney was there in court with Conley's written authority to consent that he remain in the custody of the police. In other words, the solicitor explained, there was no danger that an attempt would be made to get Conley released from the police, and if an attempt were made the police could be ready to hold him on a warrant, and further he had the particular reason stated for not wanting to expose Conley in the jail to other reported intimidation.

Attorney William M. Smith, Conley's lawyer, signed a consent to the judge's order in somewhat the following language:

That he, the lawyer, wanted his consent to remain in confinement at police station, and is willing on Conley's behalf that Conley shall be held by the police in their custody until Leo M. Frank is tried or until Conley himself is indicted; that he did not want Conley confined in the Fulton county tower because of "reported efforts on the part of certain visitors to the jail to torture and intimidate said Conley, and because he wanted to safeguard his client against "perjured admissions that Conley did not make."

DORSEY SATISFIED.

Mr. Dorsey stated in court that he was entirely satisfied with the order remanding Conley to custody as a material witness, and that he brought his petition in court because Judge Roan had notified him that of his own motion he intended to transfer Conley to the county jail.

Mr. Dorsey stated further in court that Conley could not be indicted now under the law as an accessory after the fact because no fact has been proved. Under the negro's own admissions, said the solicitor, he is liable to indictment at the proper time later.

Attorney Smith stated to the court that no effort would be made to secure Conley's release from the city police, and he presented written authority from the negro for making that statement.

Mr. Dorsey stated afterward that he will be in court when the rule nisi is called for hearing, not to show cause himself but to answer any one who attempts to show cause why the negro should be released entirely by the law.

JUDGE ROAN'S ORDER.

Judge Roan's rule on Solicitor Dorsey's petition asking the withdrawal of the court's orders holding James Conley as a material witness is:

"Read and considered: It is ordered that the petition and order be filed and duly served upon the claimed suspects in connection with the Phagan murder now confined in the common jail, towit: Leo M. Frank, Newt Lee, and others, either personally or by serving their attorneys. They, with any other citizens of Fulton county, who may receive this notice by publication or otherwise, may show cause before me, Friday, the 18th day of June, at 10 o'clock, in chambers at the Thrower building, Atlanta, Georgia, why the prayers of the petitioner should not be granted. This notice is to be served by the sheriff or his deputy by leaving a copy of the petition and order.

"L. S. ROAN, Judge,

"Stone Mountain Circuit.

"June 11, 1913."