Framed

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FEW CRIMINAL TRIALS IN AMERICAN HISTORY have been so carefully studied as Leo Frank’s, and with all the principals of the case now deceased and the written record generally available, it may come as a surprise that there is something new to be said about the case. But there is.

About three months after the murder of Leo Frank, a case was tried in the Fulton County Superior Court, of which Atlanta is the county seat. Unfortunately the record of this trial is not available; the case was appealed, however, and papers associated with that appeal provide an accurate, if less than full, account of the trial’s proceedings, a trial that reveals much about the one that doomed Frank.

The original case, Pinkertoris National Detective Agency v. National Pencil Company , was heard before Judge W. D. Ellis on November 17, 18, 19, and 22, 1915. At issue was an unpaid bill in the amount of $1,286.09 for detective services rendered by Pinkerton in 1913 for the investigation of Mary Phagan’s murder. Pinkerton prevailed in the superior court; National Pencil appealed the decision to the Georgia Court of Appeals, and Pinkerton, now the appellee, won that decision as well.

The reason that the National Pencil Company refused to pay Pinkerton’s bill can be found in the Amended Motion for the New Trial, in which National Pencil claimed that Pinkerton “did not seek honestly and in good faith to ascertain the truth, but, on the contrary, endeavored dishonestly and in bad faith to suppress and distort the truth and to bring about the conviction of Frank regardless of guilt or innocence.” Even though the court found against the National Pencil Company, a fair-minded reading of the Brief of Evidence—a 134-page document that summarizes the trial and whose accuracy was ratified by lawyers for both sides—and of supporting papers strongly suggests that Pinkerton wanted Frank to be found guilty and worked toward that end.

The National Pencil Company’s case against Pinkerton turned on the actions of the agency’s employee Harry Scott. As assistant superintendent of Pinkerton’s Atlanta office, Scott was in charge of the investigation of the Phagan murder from the day after her body was discovered in late April until sometime in August, the month Frank was convicted. Ironically it was Leo Frank himself, as manager of the pencil factory, who arranged with Scott to hire Pinkerton. Not only did Scott take an active part in the investigation, he also supervised all the numerous Pinkerton employees looking into the crime.

From the beginning the pencil company’s lawyers should have been wary of the way Scott handled the investigation, for in his testimony Scott explained that “the established policy of the plaintiff [i.e., Pinkerton] in dealing with [a] crime in its relations with the local police is to cooperate with the State and County authorities to the fullest extent and work with them in the interest of public justice.” When Frank’s lawyers requested that Scott inform them first about any new development, he was adamant that “any new facts that we unraveled in a criminal case, we go right to the police about it.” The Atlanta police, in turn, assigned Detective John Black to work with Scott.

The record indicates that Scott may have been more than merely ineffective as an investigator; there is ample evidence that he actually conspired with the prosecutor, Hugh Dorsey. After Scott was subpoenaed by the prosecution in the Frank trial, Frank’s lawyers asked Scott to discuss with Dorsey beforehand the nature and content of what the prosecutor planned to ask him on the stand and then report back to them. But Scott never spoke to Frank’s lawyer about his forthcoming testimony, although it would prove a devastating setback for the defense.

The reason was that Scott differed with Frank about many things—what Frank had done on the day of the murder, Frank’s knowledge of the principals in the crime, Frank’s behavior after the discovery of the victim’s body—and the accumulation of differences undermined the veracity of the defendant’s testimony. Worse still, Scott posed not only as a disinterested third party whose only concern was the truth but as an employee of the defense.

Early in the trial Scott contradicted what he had said at the coroner’s inquest and written in a report he had made as a Pinkerton employee to the National Pencil Company’s lawyers. At issue was what Frank had told Scott soon after the murder, when he explained how Mary Phagan had come by the pencil factory for her pay and that before leaving she had asked whether the metal had arrived. This was important to her because her job was to attach the metal sleeves to the pencils, and no metal meant no work. Both in his report and at the coroner’s inquest, Scott had said that Frank told him he had answered no to Phagan’s question. However, at the trial Scott changed the answer to “I don’t know,” which let the prosecution contend that Frank had an excuse to go with Mary Phagan to another part of the factory where he could check on the metal’s availability and that it was there that the murder had taken place. Though caught off guard, Frank’s attorney, Luther Z. Rosser, was able to question Scott on why he had changed his testimony from what he had written in his report and thus blunt, but not entirely remove, doubts about Frank’s actions on the day of the murder.