Scott may been more than merely ineffective as a defense investigator; he may have actually conspired with the prosecutor.

THIS IS ALSO TRUE OF ANOTHER CHANGE in Scott’s testimony. Scott reported to the pencil-company lawyers that in an early interview Frank had said he had left the pencil factory to go home for lunch at 1:00 P.M. on the day of the murder. At Frank’s trial Scott changed this to 1:10 P.M. , suggesting that the defendant had more time to move Mary Phagan’s body to the basement. Again, Rosser pressed Scott for the reason why he changed his testimony from 1:00 P.M. to 1:10 P.M. Scott claimed that “it must be a typographical error” in the coroner’s report and that his notes would show that Frank had said 1:10 P.M. From what is available of the trial record, it appears that these notes were never entered into evidence.

On another point there was no written evidence to help Rosser contradict Scott’s damaging testimony. Scott claimed that Frank had told him that J. M. Gantt, a former employee whom Frank had fired only a couple of weeks before the murder, “was very familiar and intimate with Mary Phagan.” This testimony suggested that Frank knew the dead girl by name, although he had testified to the contrary at the coroner’s inquest; indeed, he’d had to check his payroll books to verify that it was Mary Phagan who had been paid around noon that day.

With no written record on this point, all Rosser could obtain from Scott was a lame admission that his failure to mention it at the coroner’s inquest “was an oversight, if anything at all.” Under cross-examination Scott made a contradictory statement: “I did not consider it material at all to mention in the report to the Pencil Co. that statement of Leo Frank regarding Gantt’s intimacy with Mary Phagan.…I knew that Frank had stated that he did not know Mary Phagan and that he had to look into the books to tell her name, but it wasn’t a material fact against Frank at that time that he said to me that Gantt was familiar with her.…The first time I saw the materiality of it was when the Solicitor [Dorsey] asked me the question [during Frank’s murder trial].” This is quite an admission for a man who considered himself a savvy and seasoned detective.

The record, however, suggests more than a mere oversight. The following exchange during Frank’s murder trial between Rosser and Scott implies collusion between Dorsey and Scott:

Q. [Rosser] Was it an oversight before the coroner’s inquest too[?] Look at it [i.e., the transcript of the coroner’s inquest], and see if you said anything about that before the coroner’s inquest; your mind was fresher then about a verbal conversation [between you and Frank] than it is now, wasn’t it[?]

A. [Scott] Well, it was fresher on my mind at the time, certainly, but you will understand the coroner asked me certain questions, and I gave him answers to the questions, but he did not cross examine me like Mr. Dorsey has.…

There is more. Scott’s testimony at Frank’s trial on how Frank behaved when confronted with the night watchman Newt Lee, who had found the body and was for a time a prime suspect, went far beyond what Scott had said at the coroner’s inquest. Two days after the discovery of the body, Scott and Detective John Black asked Frank to talk with his employee Lee and persuade him to be more forthcoming. Black and Scott left the two men alone in a room for about ten minutes, then returned. Scott, at Frank’s trial, described what happened next: ”…we took seats alongside of both of them; Newt Lee was handcuffed to the chair, and he says: ‘Mr Frank, it is awful hard for me to remain handcuffed to this chair,[’] he says: ‘It is awful hard, awful hard, Mr Frank.’ Frank hung his head the entire time the negro was talking to him. Finally in about 30 seconds, he says: ‘Well, they have got me, too.’”

Dorsey continued the questioning:

Q. [Dorsey] Now, describe if you can the appearance and deportment and manner in which Frank talked and carried himself at the conference set forth on that occasion.

A. [Scott] Well, he was extremely nervous at that time.…very squirmy in his chair, crossing one leg and then with the otherf,] he didn’t know how to put his hands, he was moving them up and down on his face, and he hung his head a great deal of the time while the negro was talking to him, that is, in my presence.

Q. How did he talk[?]

A. Well, as I say, he hesitated some…

Q. How did he breath[e][?]

A. Well, he just took a long sigh that [illustrating], more of a sigh than a breath.

Q. Did you notice his eyes[?]

A. Yes sir, I judged their insecure condition all the way through, yes.