You Are There: Atlanta Journal, June 13th, 1913 – Little Mary Phagan

Solicitor H. M. Dorsey Wins in First Clash; L. Z. Rosser Declares Procedure a Farce

Atlanta Journal
Friday, June 13th, 1913

Conley is Prisoner of City Detectives, Not of State, Now

Conley Says His Attorney Believes Idea of Transfer Originated With Friends of Frank, to Harm Him

JUSTICE WARRANT MAY ROB DORSEY OF VICTORY

As Negro Is Held Simply on Suspicion, Any Citizen Might Secure Transfer to Tower on J. P. Warrant

James Conley, the negro sweeper, passed from the custody of the superior court Friday morning, and Solicitor General Dorsey won the first legal point in the prosecution of Leo M. Frank, who has been indicted for the murder of Mary Phagan.

Judge L. S. Roan, after a short hearing, which commenced in his chambers at 10 o'clock, granted the solicitor's petition that the court's former orders holding Conley as a material witness in the case against Frank, be revoked, thus preventing his transfer to the county jail.

When the court's action became formally known at police headquarters Conley was released and immediately rearrested on a charge of "suspicion," and put back in his old cell, where he claims he is afforded protection from friends of Frank, who, he alleges, annoyed him when he was in the Tower.

Judge Roan in opening the hearing remarked that he would have granted the solicitor's petition instanter had it not been for the unusual excitement about the case. He had issued a rule nisl calling upon any one who so desired to protest the solicitor's petition, he said, simply out of an abundance of caution.

The court said the only point at issue was whether or not Conley is a material witness in the case.

Present were Luther Z. Rosser, chief counsel for Frank; Stiles Hopkins, of Mr. Rosser's law firm; Bernard L. Chappell, counsel for Newt Lee; William M. Smith, counsel for Conley, and several attorneys not identified with the case.

The court asked these gentlemen if any one desired to make the point that Conley is a material witness in the case.

While the solicitor has openly stated that Conley is a material witness, he naturally did not make the point before the court.

DECLINED TO MAKE POINT.

Attorney Rosser said that he did not care to say that the negro was material to him.

He stated that he wished to formally file an answer to the rule nisl, with which he had been served, and to make his answer a part of the record in the case.

Attorney Smith said that he wished to file an answer for Conley to the rule and both papers were placed on the table before the court.

Mr. Rosser spoke of the announced intention of the solicitor to immediately rearrest the negro, and characterized the procedure as farcical, saying that there is a "right way and a wrong way" to hold the negro.

When no one made the point that Conley is a material witness the court granted the solicitor's petition.

Had the solicitor's petition not been granted Conley would have been transferred during the day to the county jail, where he claims to fear that physical and legal harm might be done, and where the solicitor do not want him held.

MIGHT TAKE WARRANT.

While apparently, the court's action leaves the negro in the custody of the police until the solicitor decides to indict him as an accessory after the fact of Mary Phagan's murder, technically there is no charge against him, and now there is no legal obstacle in the way of any citizens drawing a justice court warrant against Conley, charging him either with he murder of Mary Phagan or with being an accessory after the fact.

Should such a warrant be drawn, the solicitor will lose the point he gained Friday morning and the negro will necessarily be transferred to the Tower.

While there has been no intimation that any warrant will be drawn against Conley, it is quite apparent that any one desiring to see the negro transferred to the Tower can take this course.

CONLEY'S BRIEF FREEDOM.

At 11:45 o'clock Friday morning Conley was led from his cell to the desk sergeant's office, where Sergeant Holcomb placed "Released June 13, 1913, by order of Judge L. S. roan, of the superior court, Stone Mountain circuit," by the negro's name on the docket.

Then a "free man," Conley walked out of the station house door into the auto passageway closely followed by Chief Lanford.

For about twenty paces the free negro walked, then then he hit the Decatur street sidewalk.

By some peculiar chance Detective McGill was there, and the detective immediately spotted in Conley a suspicious personage.

Detective McGill walked over to the negro and formally placed him under arrest. He was led back before desk sergeant, where he was again docketed, the charge against him being "suspicion." The negro's arrest was credited to Chief Lanford, Detectives McGill and Coker, who first took Conley in custody.

Going back to his cell Conley remarked to Chief Lanford that if the court and the detectives had both released him that he would have requested the permission of the authorities to remain at headquarters as a "sleeper."

"I want to stay right here," the negro told the officer.

NEGRO'S ANSWER.

The answer to the negro, James Conley, to the rule nisl, which was field with the court by William M. Smith, his attorney, gives fully the negro's reasons for desiring to remain at police headquarters rather than the tower.

Conley answers a rule in the case of "The state versus Leo M. Frank, indicted for murder."

The negro sets out that he is now confined in the police prison at his own request and by advice of his counsel, and that there he is protected from legal as well as physical harm. He occupies a solitary cell block and no one is allowed to talk to him except by consent of himself and counsel and in this way "he is protected from legal harm by anyone, who might seek to damn him by false claims as to statements alleged to have been made by respondent (Conley)."

The negro says that he is willing to remain indefinitely a prisoner in solitary confinement, subject to the orders of the court. He admits that he is a material witness in behalf of the state in "this case" and admits that it is proper that he should be held until the final outcome of this case or any other growing out of the murder of Miss Mary Phagan.

He alleges that he is held in complete and perfect imprisonment and that there is no possible theory that the ends of justice will be thwarted if there exists no order of the superior court holding him.

Relative to the movement to transfer him to the county jail Conley says in his answer: "This respondent is advised by his counsel and it is the belief of his counsel that the idea of transfer back to the county prison has under it, plans laid by persons unfriendly to the interests of this respondent and friendly to the intercepts of the defendant (Frank) in this case."

While exonerating the sheriff, Conley declares that the conditions at the county jail are such that the interests of justice as far as he is concerned cannot be well safeguarded, and that his interest and the interest of justice would be threatened by his transfer to the tower.

He alleges that in the tower an insufficient force of inside guards has been provided by the county authorities and only one man is paid to guard twenty cell blocks distributed over five floors, and that it is a physical impossibility for one man to know what is going on on all five of these floors.

The keys of practically all cell blocks, he alleges are in the hands of convicted criminals known as "trusties," who also prepare and distribute the food in the jail.

EASY TO REACH HIM.

Under these conditions he alleges it would be easy for anyone to reach and harm him or to poison him through his food. He alleges that the friends of Frank are allowed to pour into the prison during the day and until a late hour at night, and that some of these friends are in close touch with the "trusties."

Conley alleges that while he was in the Tower many people whom he did not desire to see were admitted to his cell block.

Among these visitors, Conley alleges in his answer, was one whom "this respondent (Conley) has every reason to believe was working in the interest of the defendant (Frank)."

Conley alleges that this party presented him with a sandwich, which he was afraid to eat and also offered him whisky. Conley alleges that while in the county jail he was threatened with physical harm to the extent of the possibility of taking his life, and that relative to his testimony in the case he was denounced as a liar.

These occurrences he attributes not to any neglect of the sheriff, but to the physical construction of the Tower and an inadequate force of guards.

Conley sets out that in the Tower he is in close association with the other prisoners, among whom are desperate criminals, and for that reason he says he might suffer great legal harm through these men falsely swearing that he had made incriminating admissions. One of these men is a convicted murderer, he says, and would be willing to swear anything to prolong his own life.

Conley declares that he is advised and believes that one of the parties friendly to Frank is already priming himself to swear that he (Conley) made certain admissions while in the county jail, which he did not make, and which testimony will be false, and will be given, if given at all, to help the defendant (Frank) and injure the respondent (Conley).

The last paragraph of Conley's answer to the rule nisl deals with his attitude towards the sheriff and reads as follows:

ATTITUDE TOWARD SHERIFF.

"That respondent is advised and believes that the sheriff of this county has publicly proclaimed that the defendant (Frank) looks at him in the eye like an innocent man; that the sheriff has given said defendant an entire cell block and has isolated him completely except from his friends; that the sheriff has expressed himself as not desiring that nigger returned to the county prison, meaning respondent, that the sheriff appears to feel the requests made by respondent are meant as a reflection upon the sheriff, but same was not so intending to be construed, nor was same so rep-requested by respondent and in the transfer, nor was any such allegation made before the court, at the time of the passage of the second order transferring respondent back to the city prison, nor does respondent believe that same was in the mind of the court, at the time of the passage of the order or influenced the court; but that the inadequate force allowed the sheriff and the construction of the jail rendered this request by respondent necessary, and same was made to this court, with no statement of facts, other than it was requested by respondent and in the judgment of the representative of the state there was necessity for same.

"Wherefore this respondent agrees, to the passage of an order revoking former orders in this case, and waives his presence at the court, upon a hearing of same.

"WM. M. SMITH.

"Attorney for James Conley."

NEGRO QUESTIONED.

Thursday afternoon Detectives Starnes and Campbell had a long talk with Conley in his cell at headquarters. The negro, according to Chief Lanford's report, reiterated his former statements, charging the Mary Phagan murder to Frank.

Chief Lanford has given out the following statement, replying he says, to an insinuation contained in the card of Luther Z. Rosser, counsel for Frank.

"It makes no difference how much the reward for the conviction of Mary Phagan's murderer may be, neither the members of this department nor myself will accept any portion of it. This position, which I have taken in the matter, meets the approval of my men.

"If this department can dispose of the money appropriated for a reward, it will go towards the erection of a monument over the body of the slain child."

Sheriff Wheeler Mangum has made a general denial of the allegations of Conley's answer to the rule nisl, in which Conley charged that he was not properly protected while in the tower.

The sheriff declares that all prisoners who come under this care are amply and well protected, and that he spares no effort to prevent any harm, physical or legal, coming to them while they are his prisoners.