“Mary Phagan”

Author: unknown
Earliest date: 1918 (JAFL XXXI)
Keywords: homicide accusation factory abduction rape execution lie abuse mother corpse Jew
Found in: US(Ap,MW,SE)

Description

Mary Phagan works in a pencil factory. While there she is beaten to death by Leo Frank. An innocent bystander (who happens to be black) is arrested, but then Frank's guilt is established and he is sentenced to death

Notes

[This] story was later made into a movie, "They Won't Forget," in which Lana Turner made her debut as Mary. - PJS

There was also apparently a later TV movie. Books about the tragedy are commonplace; I have only one (Dinnerstein, cited below), but his bibliography cites at least five others devoted exclusively to the Leo Frank case, and numerous articles.

Laws, for what reason I do not know (it may be just one of the many typos in his work), gives the date of Mary Phagan's death as April 5, and this was used in earlier editions of the Index. McNeil reports April 27, 1913 as the date of Mary Phagan's death. A New York Times story (August 18, 1915) quoted by Brown gives a date of April 26, which -- given that the murder took place overnight -- corresponds to McNeil's date. This is also the date cited in Leonard Dinnerstein, _The Leo Frank Case_, originally published by Columbia University Press in 1968. I use a special edition from "The Notable Trials Library," 1991, which includes Dinnerstein's new preface to a 1987 edition of his book, plus the special article from the March 7, 1982 edition of _The Tennessean_ which details the evidence showing that Leo Frank was innocent.

The whole business seems to have generated a lot of confusion. For example, Laws lists the date of the commutation of Frank's sentence as June 22, but I made a note (from what source, sadly, I do not recall) that it took place in August. Dinnerstein supports the June date. And there is confusion over the date of Frank's murder as well.

The facts in this case are apparently also open to doubt -- mostly due to police incompetence, it appears.

What is certain is that Mary Phagan, who was not quite fourteen, worked in the National Pencil Factory in Atlanta in 1913. (If you're wondering what a thirteen-year-old was doing working in a pencil factory, Atlanta at this time was a very poor area, little more than a big sweatshop; child labor was considered normal -- Dinnerstein, p. 8 -- though it was considered very dangerous to let girls work in such places among grown men. But Mary's mother was a widow, and Mary had to work in the factory to make ends meet. Later, Mrs. Phagan remarried -- but Mary chose to keep working in the factory; she reportedly enjoyed the work (Dinnerstein, p. 11).

While working in the factory, she was murdered.

The body was discovered by night watchman Newt Lee at 3:00 a.m. on Sunday, April 27, 1913 (Dinnerstein, p. 1). He called the police, who found the corpse of a girl covered in sawdust, her cheeks slashed, her fingers out of joint, her head bashed in, and with a strip of her underclothes tight around her neck. Her purse (assuming she had one) had been taken. (Dinnerstein, p. 2). It was clearly murder, and a brutal one; some suspected rape as well. This apparently was based on the testimony of janitor Jim Conley (_The Tennessean_, p. 3), though the physical evidence did not support it. (Support for the theory of rape probably came from the descriptions of Mary Phagan; according to _The Tennessean_, p. 6, she was "a beautiful girl -- four feet, eight inches tall and weighing about 105 pounds. She had long, reddish-blond hair...." Dinnerstein, p. 12, has a photo which does make her quite attractive, though her hair looks rather dark and I would have guessed her to be older than thirteen.)

The police abused and detained watchman Lee (Dinnerstein, p. 14), but finally concluded he was innocent. (Unlike the papers, which at one point declared him unequivocally guilty.)

The police had been so incompetent that plant manager Leo Max Frank called in the Pinkertons (Dinnerstein, p. 4), though they would apparently turn against him under pressure of public opinion (Dinnerstein, p. 20). But they accomplished nothing -- apparently no one even examined the bloody fingerprints found in the area! They did haul in seven suspects -- but couldn't offer any real evidence (Dinnerstein, p. 15).

It didn't help that one of the local papers was a Hearst organ. The _Atlanta Georgian_ devoted over 17,000 column inches to the Phagan case in the first five months after the murder, forcing the other papers to give it attention as well (Dinnerstein, p. 13); naturally public opinion was inflamed! The paper was not actually anti-Frank, but it hardly mattered. The Mayor of Atlanta, under pressure, proceeded to order the police to find the murderer or lose their jobs (Dinnerstein, p. 16).

At the time of the murder only two men were reported to be in the factory -- manager Frank and (Black) janitor Jim Conley. Frank was apparently the last person to see her alive, since she had been paid on the day before her murder (Dinnerstein, p. 3). Doctors would later claim that she was killed at about the time she was given the money (Dinnerstein, p. 37). There was reportedly a trail of blood which began in a room near Frank's office (Dinnerstein, p. 5). Also, there was testimony that Frank was not in his office around the time of the murder (Dinnerstein, pp. 37-38). Frank, who was Jewish (and came from New York; Phagan of course was a southern girl), was arrested on April 29.

A number of witnesses came forward to attack Frank's sexual morality, including one who said Mary Phagan was afraid of him (Dinnerstein, p. 17). This seems dubious -- given the labor shortage in Atlanta, she could have found other work had she been suffering harassment. Accounts differed about whether he hassled other female employees (and, naturally, when one made charges against him, it got bigger headlines in the papers than when someone denied it; Dinnerstein, pp. 30-31). One "rooming house" owner claimed that Frank had tried to secure a room for part of a day (Dinnerstein, pp. 17-18), though an employee, despite pressure from the police, declared unequivocally that this was not so (Dinnerstein, p. 28). There were rumors, seemingly unsubstantiated, of paedophlia or other "perversions" (Dinnerstein, p. 19). I would note, though, that Frank had married as recently as 1910 (Dinnerstein, p. 6). One would think that he would still have been fairly happy with his wife.

Police hauled in a servant of the Franks, and sweated circumstantially incriminating evidence out of her -- but she declared her affidavit false the moment she was released from custody (Dinnerstein, pp. 27-28).

The treatment of Conley is what makes the whole story so peculiar. Notes which proved to be in his handwriting were found by Mary's body (Dinnerstein, p. 21). He was found trying to wash blood from his shirt -- but no one even subjected the blood to scientific examination! (Dinnerstein, p. 21). He had a record of petty crime, and there was eyewitness testimony that he was drinking in the period before the murder (Dinnerstein, pp. 21-22). Under questioning, he changed his story twice, each time adding more evidence against Frank (Dinnerstein, pp. 22-25). His final pre-trial story was that he only helped Frank dispose of the body; he accused Frank of other crimes as well.

Eventually a Grand Jury wanted to indict Conley; county Solicitor Hugh M. Dorsey, who clearly wanted to convict Frank, browbeat them out of it (Dinnerstein, p. 29).

Due to the high levels of poverty, and the extremely low levels of education, the population of Atlanta is said to have been very xenophobic. Lynchings were common. People even raised the suggestion of "blood libel" -- that Phagan's killing had been a ritual murder.

When the time came, Frank was placed on trial for murder, and Conley was used primarily as a witness for the prosecution.

Frank hired top-flight defence lawyers (Dinnerstein, p. 37), but they handled the case rather badly. Despite the mob baying for blood, they never requested a change of venue (Dinnerstein, p. 57), which was clearly necessary.

The prosecution treated the matter much more seriously -- among other things, they clearly had gotten to Jim Conley, tidying him up and, based on his behavior on the witness stand, coaching him on how to present his story (Dinnerstein, pp. 40-44). In the court, he gave a dramatic -- though not very reasonable -- account of how Frank had had him dispose of Phagan's body. And the defence could not shake him (Dinnerstein, p. 45), and made little attempt to point up the inconsistencies of his story.

When it came time to present a defence, Frank's attorneys simply tried to show that he had done nothing unusual on the day of the murder (Dinnerstein, p. 48). They did demonstrate quite a few inconsistencies in the times of events as stated by the various witnesses, and showed that Frank's whearabouts were accounted for in most of the two hours around the time the murder was thought to have been committed (Dinnerstein, p. 49), but this does not seem to have carried much weight.

Many character witnesses came forward against Conley, and many spoke for Frank -- but the prosecutor was ready for that, asking them all about Frank's sexual practices (Dinnerstein, p. 51). Every witness denied the insinuations, but it didn't matter; the insinuation that he was some sort of pervert was kept before the jury's mind.

The whole trial took four weeks (Dinnerstein, p. 52). If the account in Dinnerstein is at all valid, the whole prosecution case was little more than a smear campaign. Why the prosecutor was so intent on convicting a man who certainly was not guilty beyond a reasonable doubt is beyond me -- anti-Semitism and anti-Yankeeism seem insufficient. But I didn't live in Atlanta in 1913.

The outcome, in Dinnerstein's view, was inevitable; judge and lawyers had been presented with death threats, and possibly the jurors also (Dinnerstein, p. 60). It took the jury only four hours to decide the case (Dinnerstein, p. 55). To prevent riots, the court had been cleared, so there were few people around when the court declared Frank guilty of first degree murder. (Frank would comment, "My God! Even the jury was influenced by mob law" -- Dinnerstein, p 56.) Frank was sentenced to hang the next day, in a proceeding so secret that not even his wife was allowed to be present (Dinnerstein, p. 57).

When the verdict came down, it did much to arouse the nation's Jewish community. In one sense, this helped -- it brought in more money for Frank's legal defence. But it also caused the xenophobic Georgians to suspect some sort of Jewish conspiracy (Dinnerstein, p. 92). Imagine that -- a conspiracy to cause justice to happen! What would George W. Bush have thought?

There was, of course, an appeal -- but the Georgia constitution didn't care about guilt or innocence, or tainted juries; the only grounds for appeal was an error in law or procedure (Dinnerstein, p. 77). (In other words, having bad lawyers was a hanging offense.)

There were good grounds for the appeal. The judge who tried the original case wrote, "I have thought more about this case than any other I have tried. I am not certain of the man's guilt. With all the thought I have put on this case, I am not thoroughly convinced that Frank is guilty or innocent. 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." (Dinnerstein, p. 79).

Reading between the lines, it appears that the judge thought Frank was guilty, but was willing to give up an innocent life to answer the demands of the crowd. This is, of course, not the first instance of this; Pontius Pilate did it, too.

That left the Georgia Supreme Court. They listened to arguments from the lawyers for four hours, then decided 4-2 not to allow a new trial (Dinnerstein, p. 81).

In the period after the trial, much new evidence came out. The parties finally consulted a scientist, who said that hairs alleged to have been torn from Mary's head during the murder were not hers (Dinnerstein, pp. 84-85); those hairs were important to the prosecution's case, but the scientific evidence was suppressed. Notes found on the murder scene were proved not to have come from Frank's office (Dinnerstein, p. 87), and there was strong evidence that he could not have used the words they contained (Dinnerstein, p. 90). In addition, a number of witnesses changed their story (Dinnerstein, pp. 86-87), with most though not all of them offering new evidence favorable to Frank.

Two separate sources, in fact, gave direct evidence that Conley had committed the murder (Dinnerstein, pp. 102-105). One was a set of letters he had written to a girlfriend (which she later denied having received, seemingly under pressure from the prosecutors), the other hearsay testimony from a minister who overheard a congregant saying that he, not Frank, had committed the murder. The minister didn't know who had made the comments -- but it obviously wasn't Frank!

None of this made any difference. Georgia justice refused to act. Frank's lawyers finally appealed to the United States Supreme Court. Reading the description in Dinnerstein, pp. 109-113, it really sounds as if the Court used a series of quibbles to refuse to intervene -- but refuse they did, on a vote of 7-2, with justices Hughes and Holmes dissenting. (You have to wonder what might have happened had the case come up two years later, after Justine Brandeis joined the court, but this was 1914, not 1916). That left Frank's friends with no recourse but an appeal for clemency.

While that was going on, the lawyer for Jim Conley released a statement admitting that Conley had committed the murder (Conley, who was Black but at least he was a southerner and a by faith if not by behavior a Christian -- had by then received a one year sentence as an accomplice and, in the lawyer's view, could no longer be tried for murder because of double jeopardy. So the lawyer made the statement to try to save Frank; Dinnerstein, p. 114). But such was the climate of the time that those convinced of Frank's guilt thought the lawyer had been bribed; Dinnerstein, p. 115. Georgians by and large dug in their heels and refused to listen to reason.

The appeals for clemency came from all over the country; Dinnerstein, p. 118, counts nine governors (many of them southern), at least seven senators, "scores" of congressmen, and many resolutions by state legislatures. But the Georgia Prison Commission, claiming incredibly that no additional evidence had come in (Dinnerstein, pp. 121-122), and voted 2-1 to deny Frank relief. That left only governor John M. Slayton, whose term came to an end a few days after Frank's scheduled execution (Dinnerstein, p. 123). He spent many days on his decision, apparently knowing that commuting Frank's sentence to life imprisonment would damage his political career and maybe even cause his assassination. (There was apparently no question of pardoning Frank; that would have been too controversial.) Finally Slayton decided to commute the sentence (Dinnerstein, p. 125). In a folkloric touch, his wife is said to have told him, "I would rather be the widow of a brave and honorable man than the wife of a coward" (Dinnerstein, p. 126). He ended up leaving the state for years (Dinnerstein, p. 159. Prosecutor H. M. Dorsey, on the other hand, rode his fame into the governor's mansion.)

Slaton's summary of the case brought forward much more evidence than the actual criminal trial, and showed overwhelming evidence of Conley's guilt (Dinnerstein, pp. 126-129). He also prepared carefully for his ruling, trying to move Frank to a safer location (Dinnerstein, p. 126). He also called out the militia -- wisely, since rioters tried to reach his home (Dinnerstein, p. 132).

It didn't help Frank much; he paid a high price for being left him custody. Although the commutation of his sentence meant that he was moved to a more pleasant prison, four weeks after he arrived, another inmate, William Creen, cut his throat (Dinnerstein, p. 137); he barely survived. (Such was the sickness of the time that letters reached the new governor demanding that Creen be pardoned for his attempted murder; Dinnerstein, p. 138).

About a month later, in a carefully planned act of lawlessness, a mob broke into the prison where he was housed, handcuffed Frank, and hanged him (Dinnerstein, pp. 139-141). This time, there were no mistakes; Frank was dead. At least one witness kicked the body and stomped on his face after he was cut down (Dinnerstein, p. 144). The oak from which he was hung became the site of a perverse sort of pilgrimages (Dinnerstein, p. 145). A local coroner's jury refused to return indictments against men known to have taken part (Dinnerstein, p. 145).

Supposedly the whole incident led to a revival of the Ku Klux Klan in the area (Dinnerstein, p. 150).

It is worth noting that, in this period, Georgia experienced several dozen lynchings per year, and is said to have been the lynching-est state in the Union. In 1915, all but one of those lynched were Black. The one exception was Frank. Whether innocent or guilty, there is no real question that the reason Frank died is that he was a Jewish Yankee living in Marietta, Georgia.

An *innocent* Jewish Yankee. Even if all the other evidence doesn't convince you, in 1982, a witness came forward with evidence that Conley had committed the murder. Alonzo Mann, a boy who had been in the factory, had seen Conley carrying Phagan's body shortly before her murder. He took a polygraph test to verify his story. (See _The Tennessean_, p. 2.) Frank's name was formally cleared in 1986.

A memorial to Mary Phagan was erected in 1915. One speaker went so far as to refer to her as "sainted" (Dinnerstein, p. 136).

Jim Conley's post-Mary career shows how much of a mistake it was to let him off so easily. In 1919, he was injured in an attempt to burglarize a drug store, and was sentenced to twenty years. In 1941, he was arrested for gambling In 1947, he was picked up for drunkenness. He died in 1962 (Dinnerstein, pp. 158-159).

This song, of course, knows nothing of Frank's innocence. It seems to be a pretty good reflection of the murderous mood in Georgia in 1913. It is also a fairly accurate reflection of the story told at the trial: Versions say that Mary worked in a pencil factory, that she went there around 11:00 on the fatal day, that she was clubbed and tied up, that Jim Conley carried her body away, that Newt Lee found her body and was imprisoned for a time, that Mary's mother was wild with grief, that Frank had children who would be left fatherless, and that H. M. Dorsey was the prosecutor.

Few of the sources I've seen credit this song to an author, but Bill C. Malone (_Don't Get Above Your Raisin'_, p. 220) credits it to Fiddlin' John Carson, whose daughter Rosa Lee is credited with the first recording of it. His footnote lists several sources for the murder, but it's not clear how authorship was established. Dinnerstein, p. 121, says that Carson was singing the song at rallies in Georgia in this period -- but his footnote as to sources contains no reference to Carson. It's worth noting that the song was collected and printed in JAFL well before the Carson recording. Nor does the song mention the machinations after his death, nor his lynching. - RBW

Historical references

Same tune

Cross references

Recordings

References

  1. Laws F20, "Mary Phagan"
  2. Eddy 110, "Leo Frank and Mary Phagan" (1 text)
  3. Gardner/Chickering 144, "Little Mary Phagan" (1 text)
  4. McNeil-SFB2, pp. 71-75, "Little Mary Fagan"; "Little Mary Phagan" (2 texts)
  5. BrownII 253, "Little Mary Phagan" (4 texts plus 1 excerpt and mention of 1 more; Laws lists only three of these as this song, but this appears to be an error)
  6. Cambiaire, p. 104, "Little Mary Fagan" (1 text)
  7. Burt, pp. 61-64, "(Mary Phagan)" (1 text plus 2 long excerpts, 1 tune; one of these versions blames Conley rather than Frank, and is probably a rewrite); also an isolated couplet on p. 123
  8. DT 774, MARYFAG
  9. ADDITIONAL: Leonard Dinnerstein, _The Leo Frank Case_, second edition, University of Georgia Press, 1987, pp. 166-168, "The Ballad of Mary Phagan" (1 text, from JAFL)
  10. Roud #696
  11. BI, LF20