A Little Known 1916 Derivative Trial of Monetary Litigation Over Some $1300 Arose From the Controversial Criminal Trial of Atlanta B’nai B’rith President Leo Frank’s 1913 Rape and Murder of 13-Year-Old Mary Phagan: The Pinkerton Detective Agency Versus National Pencil Company (Concluding in 1917), Uncovers Light From The Notorious Early 20th Century (April 26, 1913) True Crime that Refuses to Gather Dust.

Pinkerton Detective Agency vs. National Pencil Company

Until now, not even the most learned students and scholars of the Frank-Phagan affair are aware of the existence of this case brought on by Pinkerton Superindentent Harry Scott against the National Pencil Company, and if they are or were aware of its existence, they know little about it, and seldom broach the subject. Students of the Leo Frank case, went to the Georgia records archive, photographed the images of the paperwork regarding this case, OCR (Optical Character Recognition Scanning), and then engaged in transcription error correction on them in the Spring of 2020.

This obscure case sheds insightful light on the Mary Phagan murder investigation which began in the early morning hours of April 27th, 1913, by Atlanta Police, and uncovers how the superintendent of the National Pencil Company, Leo Frank, handled himself during that early nvestigation and provides information about his interactions with the private investigation firm The Pinkerton National Detective Agency in the late days of April 1913, before he was arrested on suspicion, Tuesday, April 29th and thereafter for some time.

BIBLIOGRAPHY

1. National Pencil Company vs Pinkerton’s National Detective Agency https://archive.org/details/national-pencil-company-vs-pinkertons-national-detective-agency
2. National Pencil Company vs Pinkerton’s National Detective Agency: Bill of Exceptions Certification https://archive.org/details/national-pencil-company-vs-pinkertons-national-detective-agency-bill-of-exceptions-certification
3. National Pencil Company vs Pinkerton’s National Detective Agency: Bill of Exceptions Certification (Supreme Court) https://archive.org/details/npc-vs-pnda-bill-of-exceptions-certification-supreme-court
4. National Pencil Company vs Pinkerton’s National Detective Agency: First Division https://archive.org/details/national-pencil-company-vs-pinkertons-national-detective-agency-first-division
5. Pinkerton’s National Detective Agency vs National Pencil Company https://archive.org/details/pinkertons-national-detective-agency-vs-national-pencil-company
6. Pinkerton’s National Detective Agency vs National Pencil Company: Amended Motion for New Trial https://archive.org/details/pinkertons-national-detective-agency-vs-national-pencil-company-amended-motion-for-new-trial
7. Pinkerton’s National Detective Agency vs National Pencil Company: Answer of Defendant https://archive.org/details/pinkertons-national-detective-agency-vs-national-pencil-company-answer-of-defendant
8. Pinkerton’s National Detective Agency vs. National Pencil Company — Approval of Brief of Evidence https://archive.org/details/pinkertons-national-detective-agency-vs-national-pencil-company-approval-of-brief-of-evidence/mode/1up
9. Pinkerton’s National Detective Agency vs National Pencil Company: Bill of Exceptions https://archive.org/details/pinkertons-national-detective-agency-vs-national-pencil-company-bill-of-exceptions
10. Pinkerton’s National Detective Agency vs National Pencil Company: Brief of Evidence https://archive.org/details/pinkertons-national-detective-agency-vs-national-pencil-company-brief-of-evidence/mode/2up
11. Pinkerton’s National Detective Agency vs National Pencil Company: Charge of Court https://archive.org/details/pinkertons-national-detective-agency-vs-national-pencil-company-charge-of-court/mode/2up
12. Pinkerton’s National Detective Agency vs National Pencil Company: Corporation/Partnership https://archive.org/details/pinkertons-national-detective-agency-vs-national-pencil-company-corporation-partnership/mode/1up
13. Pinkerton’s National Detective Agency vs. National Pencil Company: Judgment https://archive.org/details/pinkertons-national-detective-agency-vs-national-pencil-company-judgment/mode/1up
14. Pinkerton’s National Detective Agency vs. National Pencil Company: Motion for New Trial https://archive.org/details/pinkertons-national-detective-agency-vs-national-pencil-company-motion-for-new-trial/mode/1up
15. Pinkerton’s National Detective Agency vs. National Pencil Company: Motion for New Trial Acknowledged by Plaintiff https://archive.org/details/pnda-vs-npc-motion-for-new-trial-acknowledged-by-plaintiff/mode/1up
16. Pinkerton’s National Detective Agency vs. National Pencil Company: Motion for New Trial Read and Considered https://archive.org/details/pnda-vs-npc-motion-for-new-trial-read-and-considered
17. Pinkerton’s National Detective Agency vs. National Pencil Company: Verdict https://archive.org/details/pinkertons-national-detective-agency-vs-national-pencil-company-verdict/mode/1up
18. Report of Assistant Superintendent Harry Scott: April 28, 1913 https://archive.org/details/report-of-assistant-superintendent-harry-scott-1913-04-28/mode/2up
19. Report of Assistant Superintendent Harry Scott: May 18, 1913 https://archive.org/details/report-of-assistant-superintendent-harry-scott-1913-05-18/mode/2up
20. Report of Assistant Superintendent Harry Scott: May 23, 1913 https://archive.org/details/report-of-assistant-superintendent-harry-scott-1913-05-23/mode/1up
21. Report of Assistant Superintendent Harry Scott: May 24, 1913 https://archive.org/details/report-of-assistant-superintendent-harry-scott-1913-05-24/mode/2up
22. Report of Assistant Superintendent Harry Scott: May 25 & 27, 1913 https://archive.org/details/report-of-assistant-superintendent-harry-scott-1913-05-25-and-1913-05-27/mode/1up
23. Report of Assistant Superintendent Harry Scott: May 28, 1913 https://archive.org/details/report-of-assistant-superintendent-harry-scott-1913-05-28/mode/1up
24. Report of L. P. Whitfield https://archive.org/details/report-of-l-p-whitfield/mode/2up
25. Statement of James Conley: May 18, 1913 https://archive.org/details/statement-of-james-conley-1913-05-18/mode/2up
26. Statement of James Conley: May 24, 1913 https://archive.org/details/statement-of-james-conley-1913-05-24/mode/1up
27. Statement of Jim Conley: May 28, 1913 https://archive.org/details/statement-of-jim-conley-1913-05-28/mode/2up
28. Statement of Jim Conley: May 29, 1913 https://archive.org/details/statement-of-jim-conley-1913-05-29/mode/2up
29. Testimony of Helen Kerns https://archive.org/details/testimony-of-helen-kerns/mode/2up

BIBLIOGRAPHY ITEM #1 listed above:

8251. NATIONAL PENCIL COMPANY v. PINKERTON’S NATIONAL DETECTIVE AGENCY

1. Where partners sue in their firm name, the partnership need not be proved, unless denied in a verified plea. This was true where the original petition alleged that the plaintiff was a corporation, and the partnership was alleged in an amendment to the petition.

2. It was not erroring for the court to repel as evidence in this case “certain portions of the argument made by the solicitor general of the Atlanta Circuit on August 23 and 25, 1913, at the trial of Leo M. Frank for murder in Fulton superior court”. The rejected matter was so clearly inadmissible that no discussion is necessary to show that the ground of the motion for a new trial based upon its rejection is absolutely without merit.

3. The court did not err in ruling out of the evidence the testimony of the witness Pierce, or in refusing to allow him to answer a certain question compounded to him, such testimony being a conclusion of the witness, argumentative in its nature, and irrelevant to the issues in the case.

4. It was not error, in the absence of a timely written request, for the court to fail to charge that “it was the duty of the plaintiff in conducting this investigation into the murder of Mary Phagan to act honestly and in good faith, and to deal honestly and in good faith with the defendant.” The court did instruct the jury as follows: “If you should find that this contract existed, and to the extent that it existed that the plaintiffs entered into this work, then the plaintiffs were bound to exercise reasonable diligence in the performance of the work.” Section 3581 of the Civil Code declares that “an agent for hire is bound to exercise, about the business of his principal, that ordinary care, skill, and diligence required of a bailee for hire.” The court substantially charged in the language of this statute, and under the facts of the case this was sufficient. It is of course implied in every contract that both parties thereto should “act honestly and in good faith”, and it is not necessary for the court to charge such an elementary principle of law, unless particularly requested to do so.

Decided February 16, 1917.

Complaint; from Fulton superior court — Judge Ellis. February 4, 1916.

Henry A. Alexander, for plaintiff in error.

Robert C. & Philip H. Alston, contra.

BROYLES, P. J.

1. The Pinkerton’s National Detective Agency brought suit against the National Pencil Company to recover the value of alleged services rendered under a contract entered into between them. In the original petition the plaintiff was alleged to be a corporation, and this allegation was admitted in the defendant’s answer. At the trial term the plaintiff amended its declaration and alleged that it was a partnership. This amendment was allowed by the court with the consent of defendant, and the latter made no answer to it. The case was tried and resulted in a verdict for the plaintiff for the full amount sued for.

Counsel for the plaintiff in error strongly insists, before this court, that the verdict is not supported by the evidence, because there was no proof introduced to sustain the allegation of partnership, made in the amendment to the plaintiff’s petition. There were various letter-heads and bill-heads on the plaintiff which were put in evidence, and also attached to the original petition, upon which appear the following words: “Pinkerton’s National Detective Agency; William A. Pinkerton, Chicago, Allen Pinkerton, New York, principals.” Under the ruling in American Cotton College v. Atlanta Newspaper Union, 138 Ga. 147 (74 S. E. 1084), these letter-heads might possibly be considered as some evidence of the partnership. Conceding, however, that this evidence was insufficient to show the fact of partnership, we do not think that a reversal of the judgment must result. Section 3166 of the Civil Code provides that “partners suing or being sued in their firm name, the partnership need not be proved unless denied by the defendant, upon oath, on plea in abatement filed.” Counsel for the plaintiff in error contends, however, that this section of the code applies only to a case where the partnership was alleged in the original petition, and he insists that the very language of the section designating the plea of “no partnership” as a “plea in abatement” shows that it was so intended. It is true that ordinarily a plea in abatement must be filed at the first term, but in Long v. McDonald, 39 Ga. 186, it was held that an answer denying the existence of a partnership was a plea in bar, and, although sworn to, was not a dilatory plea, which is required to be filed at the first term. This ruling was expressly approved in Solomon v. Creech, 82 Ga. 445 (9 S. E. 165). See also Crockett v. Garrard, 4 Ga. App. 360 (61 S. E. 552); Dobbs v. Mixon, 11 Ga. App. 789 (76 S. E. 166). Under these decisions it would seem that the defendant had a right to file his plea of no partnership at the trial term, especially since the fact of partnership had not been alleged by the plaintiff until that term, it is true that in Crockett v. Garrard, supra, Judge Powell criticizes the decisions in the Long and Solomon cases, doubting the applicability of the provisions of section 3166, supra, to the particular facts of those cases, but he distinctly says: “The criticism we are not about to make is not that the actual principle applied in these cases is incorrect”. In our judgment, the instant case comes within the ruling of the Supreme Court in the Long and Solomon cases, supra. It follows that if the defendant had a right to file his plea of “no partnership” at the trial term, and he failed to do so, he will not be permitted thereafter to complain that the fact of the plaintiff’s partnership was not shown by the proof. We are aware that the Supreme Court, in several decisions, has held that the provisions of section 5539 of the Civil Code, requiring a defendant to admit, deny, or explain why he does not admit or deny each paragraph, under penalty of having the allegations in the petition treated as prima facie true, relate to the answer to the original petition only, and not to the answer to an amendment to the petition, and that the failure of a defendant to answer an amendment does not authorize the court or the jury to treat the allegations in the amendment as being admitted. Hudson v. Hudson, 119 Ga. 637 (46 S. E. 874); Watson v. Barnes, 125 Ga. 733 (54 S. E. 723); Brown v. Atlanta R. Co., 131 Ga. 259 (62 S. E. 186); Brown v. Tomberlin, 137 Ga. 596 (73 S. E. 947).

Not one of these cases, however, involves the question now under discussion, and the Supreme Court stated merely the general rule as to a failure to answer an amendment to a petition. In a case like the instant one we think that the provisions of section 3166 and 5539 of the Civil Code should be construed together, and that it should be hold that a failure to deny the plaintiff’s allegation of partnership, although made in an amendment to the petition, amounts to an admission of its truth.

To hold otherwise would in our judgment be contrary to the provisions of section 3166 of the Civil Code. That section is derived from the act of 1841 (Cobb’s Digest, 590), and the preamble to that act plainly shows that it was the intention of the legislature in passing it to abolish the harsh technical rule that theretofore had been forcing the courts of this State to hold that partners suing as plaintiffs could not recover unless upon the trial they adduced proof of their partnership, even where the fact of partnership wasn’t denied. The spirit of this legislation would be largely destroyed, and in many cases the intent of the legislature would be absolutely defeated, if it were now held that partners suing as plaintiffs, who in their original petition inadvertently characterized their firm as a corporation, but who by amendment corrected this misnomer and alleged their partnership (such amendment being consented to by the defendant, and the allegation of partnership therein made not being denied by it), could not recover unless they adduced proof of their partnership. We are therefore clearly of the opinion that in such a case it should be held that the general rule, that the failure of a defendant to answer an amendment to a petition can not be treated as an admission of the truth of the allegations made therein, does not apply to an amendment by plaintiff partners alleging the existence of their partnership. In other words, it is evident that an amendment is an exception to the general rule just stated, and that in a case like the one at bar, the failure of the defendant to deny the existence of the partnership amounts to an admission of the same. This ruling is in line with those of other judicatories. “Matter added by way of amendment, to which the defendant makes no opposition, must be deemed to be admitted where the adverse party omits to move to amend his answer so as to deny it.” 1 Standard Enc. Proc 930 (E); McCloskey v. Goldman, 62 Misc. 452 (115 N.Y. Supp. 189). However, if this holding be an extension of the rule hitherto of force in this State, we think it a legitimate and just one, and one necessary under the exigencies of the case. Under the fact of the instant case it could not possibly make any difference to the defendant whether the plaintiff was a partnership or a corporation. This was not even a collateral issue in the case, and has not the slightest bearing upon its merits, there being no contention or intimation that as a matter of fact the plaintiff was not a legal partnership with the right to sue and to be sued. The cause was fairly tried; the verdict is amply supported by the evidence; no error of law appears, and we see no reason why the judgment of the lower court should be reversed.

Judgment affirmed.

Jenkins and Bloodworth, JJ., concur.

BIBLIOGRAPHY ITEM #2: Listed Above.

GEORGIA, Fulton County.

I Hereby Certify, That the foregoing Bill of Exceptions, hereunto attached, is the true original Bill of Exceptions in the case stated, to-wit:

National Pencil Company

Plaintiff in Error.

vs.

Pinkerton’s National Detective Agency

Defendant in Error.

and that a copy hereof has been made and filed in this office.

Witness my signature and the seal of Court affixed this the 15th day of February 1916

Clerk Superior Court Fulton County, Georgia,

Ex-Officio Clerk City Court of Atlanta.

BIBLIOGRAPHY ITEM #3: Listed Above.

STATE OF GEORGIA,

County of Fulton.

I Hereby Certify, That the foregoing pages, hereunto attached, contain a true Transcript of such parts of the record as are specified in the Bill of Exceptions and required, by the order of the Presiding Judge, to be sent to the

Supreme Court

in the case of

National Pencil Company

Plaintiff in Error.

vs.

Pinkerton’s National Detective Agency

Defendant in Error.

I further certify that on account of the volume of work in office I was unable to make out + transcribe this record in the time prescribed by law

Witness my signature and the seal of Court affixed this the 15th day of Feb. 1916

Clerk Superior Court Fulton County, Georgia,

Ex-Officio Clerk City Court of Atlanta.

BIBLIOGRAPHY ITEM #4: Listed Above.

National Pencil Co. v. Pinkerton’s National Detective Agency.

This case came before this court upon a writ of error from the superior court of Fulton county; and, after argument had, it is considered and adjudged that the judgment of the court below be.

BIBLIOGRAPHY ITEM #5: Listed Above.

Pinkerton’s National Detective Agency v. National Pencil Company.

No.

In the Superior Court of Fulton County, Georgia.

This the petition of Pinkerton’s National Detective Agency, a corporation, respectfully represents unto this Honorable Court as follows:

1

The National Pencil Company is a corporation organized under the laws of the State of Georgia, having its principal place of business in the County of Fulton, State of Georgia.

2

On or about the 28th day of April, 1913, petitioner was employed by the National Pencil Company to render services as a detective agency in the matter of procuring evidence to convict the murderer of Mary Phagan, who was alleged to have been slain on the premises of the National Pencil Company in the City of Atlanta, Fulton County, Georgia, on or about the 26th day of April, 1913.

3

In pursuance of said employment petitioner rendered services as a detective agency for the said National Pencil Company from the said 28th day of April, through the 18th day of August, 1913.

4

The said National Pencil Company agreed to pay petitioner for the aforementioned services the sum of eight ($8.00) dollars per day, for each person used by petitioner in said services, and in addition thereto agreed to pay the expenses of the persons employed by petitioner in the aforementioned service, while so employed, and also to pay proper incidental expenses incurred by petitioner in this behalf.

5

On account of the services rendered in pursuance of the above mentioned contract the National Pencil Company is indebted to your petitioner in the sum of Twelve hundred and eighty-six and 9/100 dollars ($1286.09), besides interest from the 1st day of January, 1914, at the rate of seven (7%) per cent. per annum.

6

A statement of items making up the aforementioned account is hereto attached and marked “Exhibit A”, and made a part of this petition, reference to which is prayed as often as necessary.

Wherefore petitioner prays that process issue requiring the defendant to be and appear at the next term of this court to answer petitioner’s complaint; that it have judgment against the defendant in accordance with the allegations of this petition.

Robert C. & Philip H. Alston,

Attys for Petitioner.

BIBLIOGRAPHY ITEM #6: Listed Above.

(AMENDED MOTION FOR NEW TRIAL.)

GEORGIA, Fulton County.

Now comes the defendant, the National Pencil Company, and amends its motion for a new trial heretofore filed on Nov., 22, 1915, and says that the verdict in the above stated case should be set aside and a new trial granted for the following reasons, to-wit:

1. Because the court on its own motion and although the plaintiff’s attorney had withdrawn all objection, refused to admit in evidence certain portions of the argument made by the solicitor General of the Atlanta Circuit on August 23d and 25th , 1913 at the trial of Leo M. Frank for murder in Fulton Superior Court, in which he had strongly urged and stressed, before the jury, as indicating guilt, certain testimony of Harry Scott, the assistant superintendent of the plaintiff, who had been in charge of the investigation of the Phagan murder. An agreement had been made between counsel for plaintiff and defendant that a certain printed pamphlet purporting to be a complete and correct copy of said argument was such in fact, and that the same, or any part thereof, might be introduced in evidence and given full force and effect as such, whenever legally admissible. It was portions of the said printed pamphlet that were offered in evidence by the defendant as above stated and excluded.

Movant contends that the exclusion of said evidence was error for the following reasons, to-wit:

One of the defenses of the National Pencil company to the complaint of the Pinkerton National Detective Agency was that in conducting its investigation of the murder of Mary Phagan, the said Agency, fearing that unless Leo M. Frank was convicted, its own prestige and standing in Atlanta as a detective agency and the personal safety of its employees would be imperiled, 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.

During the trial of this case, in the direct and cross examinations of the said Harry Scott, testifying for the plaintiff, testimony was given by him tending to show, as movant contends, that the contract between the plaintiff and defendant required the plaintiff, regardless of consequences to any person, to devote its efforts and skill to the ascertainment of the truth and the discovery of the guilty person. Other testimony was educed from said witness on cross examination tending, as movant contends, to show that in regard to a number of material points involved in the Frank trial, the reports rendered to the defendant in the first stages of the investigation by the said assistant superintendent Harry Scott, differed widely and materially from the testimony given several months later at the trial of Frank by the said Harry Scott, all such differences being to the material disadvantage of Frank. Among such differences, as movant contends, were the following;

a. In his report dated April 28, 1913, and in his testimony at the coroner’s inquest on May 8, 1913, Harry Scott, the assistant superintendent of the Pinkertons, stated that in his first interview with Frank on April 28, 1913, Frank had stated to him that when Mary Phagan asked him had the metal come, he had replied to her “No”, whereas in his testimony at the trial said Scott testified that his answer, as related by Frank, was, “I don’t know.”

b. In his report dated April 28, 1913, and in his testimony before the coroner’s inquest on May 8, 1913, Frank had said to him that he left the factory for his lunch in the middle part of the day at about 1 P. M., whereas in his testimony at the trial said Scott testified that Frank had said to him on that occasion that he had left the factory at 1–10 P. M.

c. Neither in any report nor in his testimony before the coroner’s inquest had the said Scott made any reference to any statement made to him in their first interview by said Frank to the effect that J. M. Gantt, a discharged employee of the defendant, was familiar and intimate with Mary Phagan, whereas in his direct examination at the trial said Scott testified that said Frank had made that statement, afterwards qualifying his testimony, on cross examination, by stating that he was not certain whether the remark was made by Frank or by another person who was present, N. V. Darley, and afterwards, at the trial of this case on November 18, 1915, still further changing his testimony by testifying that he was then certain that Frank and not Darley had made the remark referred to.

d. The reports made by the employee of the plaintiff to the defendant in May 1913, showed that the information that Conley could write had been obtained by said operatives from employees of the National Pencil Company and with their aid and suggestion whereas, the said Scott testified at the trial that information had been obtained by him from sources entirely independent of and disconnected from the National Pencil Company.

e. In his reports to the defendant, the said Scott made no mention of any display of nervousness by Leo M. Frank on the occasion of his interview with Newt Lee at the station House on the night of April 29th 1913. In his testimony at the coroner’s inquest, said Scott swore that the entire interview had taken place out of his hearing in a room where he was not present. At the trial, said Scott testified that he had heard and witnessed the latter part of said interview and that Frank had displayed great nervousness.

Movant, at the time of tendering in evidence the portions of the argument of the Solicitor General referred to, then and there stated to the Court that said portions of said argument which it was desired to introduce, were those portions which dealt with the testimony of the said assistant superintendent Harry Scott in reference to the matters referred to in the preceding sub heads a-e, inclusive, of the ground of the motion for a new trial; and movant then and there stated that said portions of the Solicitor’s argument which it was desired to introduce would show that said Solicitor General had strongly urged and stressed said portions of the testimony of said Harry Scott.

In order to show that said differences in the testimony of Scott were highly material, and to negative the idea that they might be trivial or unimportant, movant contends that it was entitled to put in evidence the fact that in the trial of Leo M. Frank, the Solicitor General, the prosecuting officer of the State, in his argument, had strongly urged and stressed said testimony in which such differences appeared, which fact movant proposed to establish by putting in evidence those portions of the Solicitor’s argument which dealt with said testimony.

2. Because during the examination of H. B. Pierce, a witness sworn in behalf of the defendant and shown to have been the superintendent in charge of the Atlanta office of the Pinkerton National Detective Agency, the plaintiff, during its investigation of the Mary Phagan murder he testified as follows:

“I resigned from the Pinkerton’s National Detective Agency for two things, the first was that I couldn’t serve two master conscientiously, the state and the client, and the second was that on account of the conditions at that time. I believe I was serving the best interests of the Pinkerton’s National Detective Agency by removing myself from the organization, from the fact that, had I testified in the trial of Frank, either for the prosecution or the defense, the Pinkerton’s National Detective Agency would not have had a license twenty four hours after I got off the stand. That is the reason I resigned.” On motion of counsel for the plaintiff, this testimony was tentatively ruled out by the Court, the Court saying: “I rule that out for the present”.

Thereupon the witness was then asked the following question:

“Please explain, Mr. Pierce, in more detail, what do you mean by “serving two masters.”

The witness was beginning to answer the question and to explain his meaning when counsel for the plaintiff objected to the question. Then and there counsel for the defendant stated in substance to the court that the answer of the witness to the question would tend:

First: To explain and make clear the meaning of the witness in his answer above quoted which the court had tentatively ruled out:

Second: To show that the witness in resigning from his position with the plaintiff was impelled by a strong conscientious objection to the attitude of the plaintiff in maintaining the guilt of Leo M. Frank, it being his own personal conviction that Frank was innocent; and

Third: To show that in the opinion of the witness as an expert in detective work, the Pinkerton National Detective Agency, in maintaining the guilt of Frank, under these circumstances, was acting dishonestly and in bad faith toward its employer, the National Pencil Company.

Thereupon the court sustained the objection to the question and refused to permit the witness to answer the same.

The testimony of the witness above set out, which the Court had tentatively excluded, was not thereafter admitted in evidence, and the same remained excluded.

Movant contends that the ruling of the court in excluding said answer of the witness tentatively, and exclusion which, through the absence of further action on the part of the Court, became permanent, and the ruling of the court in refusing to permit the witness to answer the above explanatory question were errors for the reasons stated above stated, and materially prejudicial to the defendant because they prevented the defendant from supporting and maintaining its defense that the plaintiff and its assistant superintendent Harry Scott, had been acting dishonestly and in bad faith throughout the investigation; the fact that the superintendent of the plaintiff was moved to resign and leave the employment of the plaintiff on account of its attitude in the matter, tending to support, as movant contends, this contention of the defendant.

3. Because the Court erred, as movant contends in wholly failing in its charge to the jury to instruct them that it was the duty of the plaintiff in conducting its investigation into the murder of Mary Phagan to act honestly and in good faith, and to deal honestly and in good faith with the defendant.

The only instruction in the entire charge given by the Court to the jury as to the nature of the duties imposed upon the plaintiff by its contract with the defendant was contained in the following paragraph of the charge, to-wit:

“If you should find that this contract existed, and to the extent that it existed, that the plaintiffs entered into this work, then the plaintiffs were bound to exercise reasonable diligence in the performance of the work.”

One of the defenses of the National Pencil Company to the complaint of the Pinkerton National Detective Agency was that in conducting its investigation of the murder of Mary Phagan the said Agency, fearing that unless Leo M. Frank was convicted, its own prestige and standing in Atlanta as a detective agency and the personal safety of its employees would be imperiled, 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.

Movant contends that the charge of the court was materially defective in that while the Court undertook to instruct the jury as to the duties of the plaintiff towards the defendant under the contract between them, and instructed them that the plaintiff was bound to exercise reasonable diligence, it failed to instruct the jury that the plaintiff was also bound to perform its services honestly and in good faith, there having been introduced by the defendant a great deal of evidence tending, as movant contends, to show dishonesty and bad faith on the part of the plaintiff and a desire, for its own protection, to suppress and distort the truth and to procure the conviction of Frank regardless of his guilt or innocence. Such evidence, was, as movant contends, in addition to the matters set out under sub-heads a to e, inclusive, under the first ground of this motion for a new trial.

First: The evidence of the witness Herbert Schiff, sworn and testifying in behalf of the defendant to the effect that on one occasion during the investigation one of the operatives of the plaintiff, L. P. Whitefield, by name, had told him of dissensions in the office of the plaintiff, and that the assistant superintendent Harry Scott, had on one occasion during the course of the investigation called him into a private office and told him that if Frank was not convicted, it would be the last of the Pinkerton Agency in Atlanta.

Second: The testimony of said Harry Scott, sworn and testifying in behalf of the plaintiff, to the effect that during the investigation he had discharged said Whitefield for going out to Marietta and declaring publicly that Conley was guilty and that Frank was innocent.

Third: The testimony of said Harry Scott showing that in editing the original report made in his own handwriting by said operative L. P. Whitefield on May 16, 1913, dealing with the discovery by him of Conley’s ability to write, preparatory to having the same re-written on a typewriter to be sent to the National Pencil Company, the said Scott had cut out and suppressed from same a statement of said Whitefield tending to show, as movant contends, that this fact had been discovered through the suggestion and aid of Leo M. Frank.

Fourth: The testimony of the said Scott at the trial of Leo M. Frank, showing, as movant contends, the methods employed by the said Harry Scott in tutoring the negro Conley and helping him to frame up a less incredible narrative that would inculpate Frank and exonerate himself.

Movant contends that the phrase, “reasonable diligence” used by the Court did not in any sense include the idea of honesty and contends that one may be diligent in dishonesty as well as in honesty. Movant submits that it was the duty of the court, whether specially requested by the defendant or not, to have instructed the jury that it was the duty of the plaintiff to have dealt honestly and good faith with the defendant, that under the charge as given, the case went to the jury without any instruction whatever on this point; and that this constituted error of a controlling and highly prejudicial character.

H. A. Alexander,

Movant’s Attorney.

The recitals of fact contained in the original motion for a new trial and in the three grounds of the foregoing amended motion for a new trial, the same being all the grounds of said original and of said amended motion, are hereby approved as true. Let this amended motion be filed.

W. D. Ellis,

Judge S. C. A. C.

Feb. 3rd, 1916.

Filed 4th day of Feb., 1916. T. C. Miller, D. Clk.

After considering the above and foregoing motion and amended motion the same is hereby denied and overruled and each and every ground thereof.

This Feb. 4th, 1916.

W. D. Ellis,

Judge S. C. A. C.

BIBLIOGRAPHY ITEM #7–29: Listed Above (will be posted later).

APPENDIX

A newly discovered document casts a disturbing light on exactly how Frank’s prosecutor won his case

“Framed”

by Stephen J. Goldfarb

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, Pinkerton’s 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.

(Image caption) Witnesses for the state: the police detective John Black (left) and Pinkerton’s Harry Scott. Atlanta Constitution, July 31, 1913

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

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.

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 other[,] 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.

On cross-examination Rosser was not able to refute much of Scott’s testimony. However, he did establish that at the coroner’s inquest Scott had testified he heard nothing of the conversation between Lee and Frank and then at the murder trial claimed that Frank had declared: “Well, they have got me, too.” Rosser forced Scott to admit that this was a change in his testimony.

As for Frank’s nervousness, Scott had never mentioned it at the inquest. When Rosser asked him about this, Scott said: “At the time, Frank’s nervousness had no effect whatever on my mind, because I did not consider Frank any suspect at all. Knowing the man was under a strain, I did not suspect him at all at that time, and therefore it was not a material fact at the time. I did not consider him a suspect.” This is impossible to believe, for Scott admitted that on the previous day, when he first interviewed the defendant, he “knew then that Frank was under strong suspicion.”

Though Rosser blundered later in the trial, he was powerful and effective when confronting the state’s witness John Black, the city detective who worked with Scott on the case. Through careful and insistent questioning, Rosser all but destroyed Black’s testimony against Frank. At one point Black was so confused that he took six minutes to answer a question, and near the end of his testimony he declared, “I don’t like to admit that I’m crossed up, Colonel Rosser, but you have got me in that kind of a fix and I don’t know where I’m at.” No surprise then that the headlines of the story of Black’s testimony read: DEFENSE RIDDLES JOHN BLACK’S TESTIMONY/SLEUTH CONFUSED UNDER MERCILESS CROSS-QUESTIONS OF LUTHER ROSSER. The Atlanta Georgian said, “There is a feeling growing more fixed every day, . . . that the state, if it hopes to win, must set up something more than it has yet made public.”

When Scott took the stand, he proved a more difficult target for Rosser’s cross-examination than Black had been. Dorsey was able to get Scott to give testimony that damaged the defense’s case, and as we have seen, because much of this was a surprise to the defense, Rosser was hard-pressed to get Scott to retract it. Summarizing the day’s testimony, the Atlanta Constitution declared, “Harry Scott . . . proved a strong witness for the state, although at first, it looked as if he would prove of more value to the defense.” Though the trial had been underway for several days, Scott was the first witness who really aided the case against Frank.

Rosser was emphatic about how the changes in Scott’s testimony had damaged the defense. In the trial over the unpaid Pinkerton bill, he declared: “At no time prior to the trial of the Frank case, was I informed verbally by Mr. Scott . . . that he intended to change the testimony that he gave at the Coroner’s inquest and the information that he gave me in his reports as to the matter of Frank’s saying ‘no’ or ‘I don’t know[.]’ He certainly did not tell me before he went on the stand at the trial that he was going to testify that Frank told him that Gantt was intimate with Mary Phagan. His testimony at the trial on that point certainly surprised me. In my opinion, as an attorney, that was certainly a matter of materiality and consequence in the case.”

On cross-examination, Rosser expressed in even stronger terms what he considered Scott’s duplicity: “Mr. Scott never made any effort to get a conference with the attorneys for the defense before the trial. I did not know that Mr. Scott had any opinion about the case that had not been communicated to me . . . and everything he knew was supposed to have been put in writing in the reports, that he had made to me, and I supposed that those reports were true. If I had thought that Mr. Scott was going to testify anything different from what was in the writings that had been submitted to me, I would have wanted to talk to him.”

SCOTT CLAIMED THAT AFTER HE HAD DISCUSSED his testimony with Dorsey, he attempted to speak to Frank’s attorneys but was refused an interview. But surely, if Frank’s lawyers had had any indication that Scott’s testimony at the murder trial would differ from what he’d said at the coroner’s inquest or in his written reports, they would have found time to talk to him.

More plausible is that even though he was employed by the defense lawyers, Scott had been conspiring with Dorsey for some time to establish Frank’s guilt. This is nowhere more evident than in the role he played in the several statements made by the prosecution’s most devastating witness, Jim Conley.

(Large text) Four times in all, and all under oath, Schiff insisted Harry Scott had stated explicitly that Pinkerton wanted Frank to be found guilty.

At first, Conley had been overlooked as a possible suspect because the investigators believed his claim that he could not write. But at some point two Pinkerton detectives, L. P. Whitfield and W. D. McWorth, became suspicious. According to Leo Gottheimer, a National Pencil Company salesman, the two detectives visited the factory on May 16, 1913, a little more than two weeks after the murder, and asked: “those present if they knew whether Jim Conley could write.” At McWorth’s request, Gottheimer went over to the “Tower,” the county jail where Frank was being held, to ask Frank. The answer was definitive: “Yes, I know he can write, I have had notes from him asking me to lend him money …” Frank directed Herbert Schiff, acting superintendent of the pencil factory, to a drawer in the company safe that contained documents associated with Conley’s purchase of watches from local jewelry stores and pawnshops. These led the Pinkerton detectives to three shops where they were able to secure loan contracts signed by Conley, and when the signatures were compared with the murder notes, Whitfield noted in his report for that day, “the handwriting appeared to be identical.”

Though Scott could not prevent the knowledge that Conley was able to write from becoming known, he did try to hide Frank’s role in its discovery, for if Frank were guilty of the murder and Conley were his accomplice, then Frank would be expected to try to shield Conley from questioning.

Luther Rosser had no doubts about the significance of Scott’s failure to inform him that Frank was instrumental in the discovery. At the unpaid-debt trial he stated, “In my opinion, as an attorney, it was material that I should have known beforehand the information that the Pinkerton’s [sic] had that Leo Frank had said that Conley could write and that information should have been given me by the Pinkertons.” Under questioning by the attorney Harry A. Alexander, acting for the pencil company, Rosser explained how valuable this knowledge could have been for the defense:

Q. [Alexander] When Mr. Scott took his stand at the trial and testified that he ha[d] gotton [sic] the information about Conley writing from sources entirely disconnected from the pencil factory, would it or would it not have been material to you? . . . You could have disproved it by their own reports, couldn’t you[,] if Mr. Scott, had —

A. [Rosser] If they had reported to me, I could have shown it in their reports, of course.

Q. Yes, if it was in that report that they had got it from Leo Frank?

A. If they had given me that information I could have just handed it up to him [Scott], and said: “What did you report that to me for?”

The evidence offered by the National Pencil Company lawyers shows that Scott edited Pinkerton documents to remove any mention of Frank. This evidence consisted of two copies of Whitfield’s report for May 16, 1913 — a draft in Whitfield’s hand and the final typed version. In the handwritten version the following words were crossed out: “but that he would sent [sic] to the tower and learn from Leo Frank if Conley could write.” These words did not appear in the typed version submitted to Frank’s lawyers, and it was Harry Scott who had edited Whitfield’s draft report.

Once Conley became a prime suspect, he eventually made four different statements, a process that involved Harry Scott more than any person except Conley himself. At Frank’s trial, Scott claimed that he coaxed Conley to write by dictating “That long, tall, black negro did by himself,” words similar to those on the murder notes. Scott explained: “We [Scott and John Black] talked very strongly to him, and tried to make him give a confession [;] we used a little profanity, and cussed him, and he made that statement that he knew that I knew that he could write; we talked for about 2 or 3 hours that day. He made another statement on May 24th, which was put in writing.”

On the basis of the second statement, Scott and Black “questioned him [Conley] very closely for about 3 hours” and again the next day, but Conley stuck to his story. In this statement, Conley claimed that Frank had paid him to write the murder notes on Friday, April 25, the day before the killing. Scott continued: “We saw him [Conley] again on May 27th in Chief [Newport] Lanford’s office. They talked to him for about 5 or 6 hours. We tried to impress him with the fact that Frank would not have written those notes on Friday, that was not a reasonable story, that showed premeditation and that wouldn’t do.”

On May 28, 1913, Scott, joined this time by Chief Lanford, “grilled” Conley for “5 or 6 hours, endeavoring to make clear several points which were far fetched in his statement; we pointed out to him [Conley] that his statement would not do, and would not fit. He then made us another long statement on May 28th.”

This was Conley’s third statement. On the very next day, May 29, Scott and another person, most likely either John Black or Chief Lanford, spent “almost all day” talking with Conley in an attempt to improve on it. As Scott explained, “we pointed out things in his story that were improbable, and told him he must do better than that, anything in his story that looked to be out of place, we told him wouldn’t do; after he had made his last statement, we did not wish to make any further suggestions to him at that time; he then made his last statement on May 29th.”

More than two years later, when he was confronted with these statements by the National Pencil Company attorneys, Scott explained that he was only trying “to make Conley confess that he killed the girl. That was my idea, and I put the most unusual efforts in that line. The affidavits that I took from Conley were taken to make him confess that he committed the crime himself.”

This strains credulity. Scott’s own words give ample evidence that rather than induce Conley to confess that he alone murdered Mary Phagan, Scott was working with Conley to produce a statement that would convict Frank of the killing and portray Conley as a paid accomplice after the fact. Had Scott and the others not pushed Conley on his several statements, it is very likely that Conley rather than Frank would have been found guilty.

The sequence of events lends further support to the hypothesis that Scott and the prosecution were working single-mindedly to establish Frank’s guilt. Conley made his second statement on May 24, 1913, the same day that Frank was indicted for the murder. If Scott was really trying to get Conley to confess, the indictment could have been delayed pending the results of his interrogation. Rather, they had no doubt already made up their minds; Scott could not have been ignorant of the proceedings of the grand jury as he testified before it on the very day Frank was indicted.

THE TRIAL OVER THE UNPAID BILL OFFERS further evidence about Scott’s motives. According to H. B. Pierce, superintendent of Pinkerton’s Atlanta office, Scott failed to broaden the investigation to include Conley but “was entirely interested in developing the Frank proposition.” Pierce testified that he and Scott “clashed very often” and “had several discussions on some matters [associated with the investigation] bordering at time[s] on quarrels.” Pierce went on to say that Scott “was influenced by public opinion, he was of the opinion that if so many people saw it that way, that is the way the case was being developed, [and] that, in his opinion, must be right, against all other facts or anything else, regardless of [the] facts.” Pierce, on the other hand, thought that public opinion could be wrong and that if there were differences between the Pinkerton agency and the police, Pinkerton should “go on making [the] investigation for our client, regardless of the theories of the police department or anybody else, or we would quit.” The reason that Scott could go against the wishes of Pierce, his supervisor, was that the Pinkerton hierarchy was on his side. Pierce testified that “Mr. Scott had the weight of opinion both with his superiors and with himself. By superiors, I mean his general superintendent and his other superior officers. Mr. Scott, was then in correspondence with the officers higher than myself and his course in working on the Frank angle met [with] their approval.” Pierce queried his immediate superior A. S. Cowerdin. “I went over the case with him in detail and explained my views. He very politely replied that from the revealed facts and the reports that had been submitted, and that were being rendered, it was his opinion that the investigation was being carried on in a proper way. He disagreed with me and agreed with Mr. Scott.”

Pierce was not the only one in the local Atlanta Pinkerton office who differed with Scott over the direction of the investigation. Leo Gottheimer, the National Pencil Company salesman who had been sent to ask Frank whether Conley could write, testified about conversations he had had with Whitfield and Me Worth. According to Gottheimer, the two investigators “said as to the relations between themselves and their superiors . . . there seemed to be friction with their superiors, everything they done . . . they told me they would not accept their theories, and they seemed to be tickled to death to get this new evidence . . . [that Conley could write. Gottheimer quotes them as saying] ‘We have got the goods now, they can’t deny this, we can prove this on them in such a way that they can’t deny it.’” Herbert Schiff, Frank’s successor as factory superintendent, also testified about tensions in the Pinkerton’s Atlanta office. During several of the many visits that Whitfield and Me Worth made to the factory, “they told me of the dissention [sic] in the office, and of the things that they put up that never seemed to agree with Mr. Scott, and Whitfield told me on one occasion that Mr. Scott called him into the private office and told him that if Leo Frank wasn’t convicted it would be the last of the Pinkerton agency in Atlanta.” Twice under cross-examination and twice more under re-direct examination — four times in all, and all under oath — Schiff insisted that Scott had stated explicitly that Pinkerton wanted Frank to be found guilty.

(Image caption) Dorsey’s success as prosecutor in the Frank case aided his gubernatorial victory in Georgia in 1916.

In itself, this document, the Brief of Evidence, which has for so long lain dormant, does not prove guilt or innocence. It does, however, add substantially to the evidence that Leo Frank did not receive a fair trial. In fact, the conclusion that he was railroaded is now inescapable. Whatever his reasons, Harry Scott was a key figure in convicting Frank of murder. Less certain, but still highly suggestive, was the malign role played by the prosecutor, Hugh Dorsey. Here ambition was certainly a motive, and a successful one, for Dorsey was twice elected governor of Georgia. This document strongly suggests that Dorsey urged witnesses to embellish their testimony, even lie under oath, to build a case against Frank.

The picture that emerges from this civil trial over an unpaid bill is of a conspiracy between the prosecutor Hugh Dorsey and Harry Scott of Pinkerton’s National Detective Agency to find Leo Frank guilty of murder. Although we will almost certainly never know just what was said between Dorsey and Scott, their collaboration seems to have assured that Leo Frank would not receive a fair trial for a crime he almost certainly did not commit. ★

Stephen J. Goldfarb is on the staff of the Atlanta-Fulton Public Library in Atlanta, Georgia.

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