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CHAPTER XI

THE CASE OF LEO M. FRANK AND A PUZZLING QUESTION OF NATIONAL RESPONSIBILITY

OCCASIONALLY there comes to that august chamber in the Capitol a cause on fire with the heat of racial or social controversy-a cause in which men's deepest feelings have been aroused, public opinion has been sharply aligned, and elemental forces of prejudice and passion have entered an atmosphere where should prevail only impersonal arbitrament under law. At such a time and in such a cause, it becomes one of the great stabilising prerogatives of our revered tribunal to restore to the final determination of the case that perfect fairness, that assurance of freedom from outside influence, and that deep regard for the substance of right and the fundamentals of fair trial, which are the heritage of Anglo-Saxon jurisprudence and the high privilege of every person accused of crime in an American State. In the impressive presence of the Nation's Court and in the contemplation of all it has typified in the imperishable traditions of the Republic, the voices of tumult and antagonism are stilled, and the rancour of the city street and countryside gives way

to the reasoned impartiality of a law-governed Court. Passion and prejudice may have mightily muddled the facts and the issues; public opinion may have found itself unable to see truly or think clearly, in judging of the merits of the bitter controversy; yet amid such a setting of the cause before it, the Supreme Court performs one of its most valuable functions as an expert interpreter and aid of the ultimate consensus of public opinion, through a clear and patient statement of the facts, a fair demarcation of the real issues, and a resolute re-formulation of the applicable essentials.

Such a controversy was presented by the appeal to the Supreme Court from the refusal of the United States District Court for the Northern District of Georgia to grant or hear and try the writ of habeas corpus for which application was made in behalf of Leo M. Frank, a former resident of New York City, who had been convicted in the Georgia State Courts of the murder of a girl of tender years, employed in an Atlanta pencil factory, of which he was superintendent. The resources of appeal and motions for a new trial had been exhausted in behalf of the accused, so far as the State Courts were concerned, and the regularity of the proceedings incident to his trial and conviction had been in all respects sustained. The Supreme Court of the United States was not unanimous in its approval of the action of the United

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States District Judge, in refusing the application for the writ without the taking of testimony to ascertain the truth or falsity of the serious allegations of the petition; Justice Holmes and Justice Hughes were in fact constrained to dissent from the prevailing view; but no one can read or re-read the majority and minority opinions in this case 1 without gaining a higher respect for the Court which DeTocqueville said, eighty-one years ago, was "at the head of all known tribunals."

The issue before the Supreme Court was not whether Frank was innocent or guilty of murder, or whether he should be sentenced to death or set free. No one denied that these matters were to be decided, in all respects, by the State Courts of Georgia and under its laws. The issue before the Supreme Court was not whether incidents of outside influence and manifestations of prevalent hostility to the accused, had in fact brought about his conviction under circumstances denying the fundamentals of a fair trial. The United States District Judge had taken no proof to determine the truth or falsity of these allegations, and the Supreme Court, on the appeal from his refusal of the writ, was at least in no better position to judge of the facts on that issue. The question was not at all one of racial hostility to Frank in Georgia, if there was such hostility, or of racial interference in behalf of Frank, if there had been such inter

Frank vs. Mangum (237 U. S. Reports, page 309).

ference. The Supreme Court cut straight through all of these matters to the question necessarily to be decided-a question of the most far-reaching importance to our whole judicial and governmental system, rising far above the eventualities of the fate of the particular prisoner at the bar.

The actual point of decision was whether the United States District Court was right, upon the allegations of the petition as to the proceedings had with reference to Frank, in refusing to entertain the writ and proceed to determine whether there was foundation in fact for the charges that Frank did not have a trial uninfluenced by external pressure of angered public opinion. The majority of the Supreme Court upheld this refusal, on the ground that inasmuch as there was no challenge of the constitutionality or validity of any statute under which he was tried and the conduct of his trial conformed to all the forms of law, and inasmuch as the State Supreme Court had decided, after having before it evidence adduced on the subject, that there was no foundation in fact for Frank's charges of "mob influence" on the jury's action, every requirement of a fair trial and "due process" had been met and the Federal Courts had no reason or right to proceed to inquire into the facts and consider substitution of their judgment for that of the highest Court of the State on the question whether the

requirements of fair trial had in fact been fulfilled.

From the majority determination Justice Holmes and Justice Hughes dissented, because of a belief that under the "due process" clause, the Nation's Supreme Court has the ultimate responsibility for determining whether any person, of high or low estate, of any race or creed, has in fact been convicted of high crime under circumstances where external influence made the court-room proceedings a mere form and shell, so far as fair determination of actual guilt or innocence was concerned. They did not undertake to say that Frank had or had not a fair trial, or should have a new trial; they did not undertake to say whether the allegations made in his behalf were true or false; they did, however, believe that when such an issue was raised, it was the solemn duty of the Federal Court to take the testimony and find out the facts on that issue, and that under the great guaranties of Magna Charta and the Bill of Rights as embodied in the National Constitution, the determination of even the highest State Court cannot be accepted as in all events final and conclusive upon the question whether those guaranties were actually infringed. Said Justice Holmes, in ruling that the matter should go back to the District Court to take testimony on the question whether there had been improper influences pervading the trial:

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