MARIETTA — A part of history some Mariettans would prefer stay buried is being dug up, once again.
More than a century after Leo Frank was convicted in the 1913 murder of 13-year-old Mary Phagan, former Gov. Roy Barnes is working with the Fulton County District Attorney’s Office to exonerate him.
Barnes believes a judge could rule on the case as early as next year.
The circumstances surrounding Phagan’s murder and Frank’s lynching have haunted Marietta ever since they occurred. Frank employed Phagan, a Marietta resident, at the National Pencil Company in Atlanta, where he was superintendent. After he was found guilty of her murder, the governor commuted his sentence from death to life imprisonment. In response, a lynch mob of prominent Marietta men calling themselves the Knights of Mary Phagan drove to Milledgeville where Frank was imprisoned, kidnapped him, brought him back to Marietta and hanged him from a tree in 1915.
“The great question I have is how could the most upright members of the community have lost their minds and done this? I just don’t understand,” said Barnes, who has been fascinated by the case ever since he started reading about it in law school. “After I came back here from law school I went down to Fulton County Superior Court and told them I wanted to pull the file so I could read it, and the file was gone from the clerk’s office. Somebody took it years ago.”
For years, the story of Leo Frank was “hush, hush” in Marietta and only spoken in whispers. Barnes suspects that’s in part because members of the lynch mob were still alive. When Barnes spoke at the dedication ceremony of a marker in Frank’s honor a few years ago, he told the audience they couldn’t blame the lynching on the Barnes family.
“We were still making moonshine and whiskey in the north Georgia mountains. ‘We didn’t get here until 1919,’ I said, ‘but everybody else in town you can blame.’”
And that includes a relative of Barnes’ wife Marie, who drove one of the cars, he freely acknowledges.
Barnes has had an ongoing email conversation with a circle of fellow enthusiasts interested in the case, among them Rabbi Steven Lebow of Temple Kol Emeth, attorney Dale Schwartz, former Marietta Councilman Van Pearlberg, former UGA law school professor Donald Wilkes and former Georgia Supreme Court Chief Justice Leah Sears.
“We all talked several years ago that we should try to bring some action to legally exonerate Leo Frank,” he said.
About two years ago, Barnes said he went by to see Fulton County District Attorney Paul Howard about the matter since Fulton County is where Frank was convicted.
“And I said, ‘Paul, this was a miscarriage of justice. I said I’m convinced through the reading not only did he not get a fair trial, he was not guilty. The case just simply was wrong. They had one of the main witnesses on his deathbed to recant, this was back in the 70s.”
When Howard asked Barnes what he had in mind, Barnes said he wanted to see if he could get the judgment against Frank set aside. Howard said he was open to the idea, but believed if he assembled a team to consider it, the team should look at more than one case.
“There’s no question he didn’t get a fair shot,” Barnes said.
At the time of Frank’s trial, the Fulton County Courthouse was on Marietta Street in downtown Atlanta and was without air conditioning. The jury stayed in the Kimball House.
“And there were just mobs of people. And as the jury would go up from the Kimball House to go to the courthouse everyday, the mob would scream, ‘Hang the Jew or we’ll hang you!” Barnes said.
Former Marietta Councilman Philip Goldstein has shared how his grandfather, a merchant on Marietta Square at the time of the lynching, had to flee with his family to Atlanta to avoid an angry mob approaching his shop.
In 1986, Frank was posthumously pardoned by the Georgia State Board of Pardons and Paroles under Gov. Joe Frank Harris. Barnes was Harris’ floor leader in the Legislature at the time and worked on the effort.
Yet “Pardon just means that you are relieved of the conviction because you didn’t get a fair trial. Now you can have a pardon because of innocence. But the governor and the pardon parole board didn’t do that. They did it on the basis that he didn’t get a fair trial. We all wanted exoneration because we all were convinced he was innocent,” Barnes said.
A few months ago, Barnes said District Attorney Howard called to say he was creating a new division in his office to review several cases and that the Frank case would be among them. He asked Barnes to serve as an adviser.
“It will take several months to assemble everything, and then we’re going to present it to this unit and ask that he be exonerated through court procedures,” Barnes said. “There will be a motion for new trial that will be filed if it is agreed so that the case can be dismissed on the basis of innocence even though he’s been dead for over 100 years. They hung him over 100 years ago.”
Chris Hopper, public affairs director for the Fulton DA, said Howard is in the process of forming the first “Conviction Integrity Unit” in a Georgia DA’s office. The first cases the unit will review are the Leo Frank case and the Atlanta Missing and Murdered Children case.
“Some within the criminal justice system here in Fulton County have said that my office is taking a significant risk by creating and forming a Conviction Integrity Unit,” Howard said in a news release. “Some believe we are exposing ourselves to greater scrutiny and criticism by sanctioning an independent review of our cases. However, it is my belief that a conviction based upon truth and justice will withstand any scrutiny. It is my belief that the greatest risk is not allowing truth and justice to direct your decisions.”
But if Frank is innocent, who killed Phagan?
“I think it’s pretty clear that the custodian is the one who did it,” Barnes said, referring to Jim Conley, a janitor at the pencil factory.
A question many have asked over the years is how an African American in early 1900s Georgia could have escaped blame in such a toxic atmosphere.
Barnes said to understand that question, one most know about Tom Watson, a Georgia congressman and newspaper editor who used his publications to fan the flames of anti-Semitism, poisoning public opinion against Frank.
Just months after Frank’s lynching, “many of these same men would take part in the nighttime ceremony at Stone Mountain that established the modern Ku Klux Klan,” according to the New Georgia Encyclopedia.
“It was just kind of a perfect storm,” Barnes said. “That’s my answer to how an African American could be believed over someone of Jewish extraction at the time.”
Barnes believes the evidence will show that Frank was innocent. That evidence ranges from a freight elevator in the factory that led to the basement where Phagan’s body was found to a witness who recanted his testimony, among other items.
“We have the evidence,” Barnes said.
The former governor is aware that the Phagan family is unhappy about the case being reopened.
In an email to the MDJ, Mary Phagan-Kean, great-niece and namesake of Mary Phagan, writes “The Phagan family has no objection to anyone expressing their opinions about the Frank case, but we do insist that organizations and personal campaigns not distort the truth and facts to use this case for their own political purposes. ... Driven by the need to exonerate a Jewish leader, they intend to convict an innocent African-American man. They spread fabrications, propagandize falsehoods, distort the facts and change headlines of original newspapers to promote the hoax of not guilty. The real miscarriage of justice is that in this time of the #MeToo movement, they seek to override a duly convicted child rapist and murderer’s conviction.”
To those who say Barnes is simply trying to open old wounds better left closed, he quotes Rabbi Lebow: “There’s never a statute of limitations on doing what is right,” Barnes said. “And that summarizes it pretty well. Leo Frank did not kill Mary Phagan. I’m convinced of it. And I feel for her family. They lost a young woman. Just a teenager. But what is even worse is to lose a teenager and to have the wrong fellow convicted for killing her. And so the purpose of history, you know, is after the passions of the moment pass, is to look dispassionately at the facts, and when you do that, there is not any question in my mind.”