Murder and Injustice in the Old South

Times Staff Writer

In a corner of a cedar-scented Confederate graveyard stands a marker to Mary Anne Phagan. Little Mary, as they know her around here, of legend and song.

Nearby rests Herbert Clay, mayor, prosecutor and leader of the lynch mob that exacted its own justice in Mary's death. If one were possessed of a sufficiently gothic imagination, one might declare it fitting that Mary, the eternal victim, lies almost within the embrace of Clay, her everlasting avenger.

Trouble is, Clay almost certainly got the wrong man.

A new book that has captured the attention of this former cotton-ginning center outside Atlanta offers evidence that would exonerate Leo Frank of strangling and brutalizing the 13-year-old girl in the basement of his pencil factory. To the chagrin of some of Marietta's most esteemed families, it also lays bare the audacious plot to kidnap Frank from a state prison and drive him through six counties to his hanging tree.

Planners of the lynching, said Steve Oney, author of "And The Dead Shall Rise," included judges, lawmen and a former governor -- some of whose descendants are prominent in present-day Marietta society.

"I'm not normally a believer in conspiracies," said Oney, 49, who spent 17 years looking into the case. "But this was an unofficial state-sponsored lynching."

Southerners don't spend a lot of time listening to the ghosts of the Old South rattle their chains. Like everyone else, they're more worried about gridlock and mortgages.

But this is not just another true crime story. What the Manson Family murders were to California in terms of offering a snapshot of a time and its toxic social forces, Mary's killing and the subsequent lynching of Jewish industrialist Frank were to Georgia.

Even though the events are 90 years old, a standing-room-only audience of 700 recently gathered in Atlanta to hear Oney tell his story. The book, released last month by Pantheon Books, has been selling briskly at local stores.

The new interest in the case has also spurred a flurry of commentary in the local papers. Even though Marietta, with its sports bars, theme restaurants and multiplying housing developments, is a vastly different place than the mercantile outpost of 5,000 it was at the time of Mary's slaying, people are aware of their pasts.

Some descendants of lynch-mob members have been surprised to learn their forebears were involved. Some are angry at seeing their family's soiled linen flapping in the breeze.

"This is just muckraking," said Charles M. Brown, 77, a retired aerospace worker. His grandfather, former Georgia Gov. Joseph M. Brown, was identified in the book as a conspirator. His grandfather was a "very opinionated man," Brown said. As to whether he participated in the lynching plot, Brown said he had no idea.

But he is upset it has all come up again. "They're just trying to make the South look bad, like they've been doing for years."

Others are embracing the book in the hope it will at last end speculation surrounding one of the region's most sensational crimes, one that was covered by newspapers around the country, including the New York Times, which argued Frank's cause.

"It has been a huge secret for years and years," said Dan Cox, 64, executive director of the Marietta Museum of History. "I think this will finally put it to rest."

Mary's bloody and despoiled body was found April 26, 1913, covered in black soot and pencil shavings. Suspicion immediately fell on the factory's night watchman. But police quickly shifted their focus to Frank.

A slender, dignified man who loved classical music, Frank was married, happily it seemed to all who knew the couple in the thriving Jewish community. But stories soon emerged that he was something of a masher, making insinuating remarks to the girls he employed. On her last day of life, when Mary went to pick up her $1.20 in wages, she told a friend she didn't like being alone with Frank.

By this time, Frank was already half-convicted in the minds of newspaper readers, their opinions enflamed by anger toward factory owners, particularly Northern industrialists like Frank, who made their fortunes on the backs of child labor. Mary's boss was a tailor-made villain -- her own Simon Legree -- for a region still nursing its wounds from the Civil War.

The scales tipped firmly against Frank when a factory worker said that, at Frank's behest, he wrote two notes found under Mary's body. The notes, in semi-literate English, were intended to implicate the night watchman.

Frank was arrested, convicted and sentenced to death. When then-Gov. John M. Slaton commuted the sentence to life in prison, a populist rage erupted against the North and, in particular, wealthy Jews who were believed to have manipulated Slaton behind the scenes.

That rage satisfied itself one night two years after the killing, when a caravan of cars showed up at Milledgeville prison farm and kidnapped Frank from under the noses of armed men in the guard towers. When the news of Frank's lynching reached Marietta, there was cheering and celebration. Over and over, Fiddlin' John Carson played his new ballad, "Little Mary Phagan."

"Little Mary Phagan," it began, "she went to work one day; she went to the pencil factory, To get her little pay...."

Oney became interested in the case in 1985 while writing for the Atlanta Journal-Constitution's magazine. Over the decades, there had been other books, even a musical telling the story of Mary's death and arguing Frank's guilt and innocence. Despite a blanket of silence maintained by the lynchers, the names of some of those involved eventually found their way into the public domain.

But no one had put the whole story together. No one had unraveled the mystery of how the plotters managed to break Frank out of a heavily guarded prison whose warden was known to believe Frank was innocent.

"From the outset, I wanted to answer the question: How did they pull it off?" said Oney, who lives in Los Angeles. To find out whose cars were used in the jailbreak, he researched every car registered in Marietta in 1913. It was slow going.

One name that came up again and again was Herbert Clay, who at the time of the lynching was the chief prosecutor for all of north Georgia. Clay's son, a lawyer in Sarasota, Fla., agreed to meet with Oney. "I flew down there and walked into his office," Oney said. "When he turned around, he was sobbing. 'I have to tell you, my father was involved in the lynching of Leo Frank.' "

That was the writer's invitation to the inner sanctum of the lynching plot. Twenty-six were involved, but the key planners were a handful of powerful men from respected families. One was Clay. Another was a member of the Legislature who had just been appointed chairman of the prison subcommittee.

John Tucker Dorsey, a law partner of Clay's, blackmailed the warden at Milledgeville, Oney said. The night of the kidnapping, Frank was taken from the prison without a shot being fired.

As prosecutor, Clay oversaw the work of the grand jury that investigated the lynching. Not surprisingly, it found no one in Cobb County to blame.

Oney may have solved the mystery of the lynching, but what of the killing of Mary?

After extensive review of the court records and independent accounts of the trial at the time, Oney said he became convinced of Frank's innocence. The guilty party? Crime scene details and linguistic analysis point to the factory worker who wrote the notes found under Mary's body. The man probably intended to rob Mary of her pay but killed her when she struggled, Oney said.

Though some descendants of the plotters have been disturbed by the book's publication, Cox, of the Marietta museum, said he had been surprised by the overall reaction. "Most of the comments I've had have been positive."

The reaction in the Jewish community has been mixed, said Jane Leavey, executive director of the William Breman Jewish Heritage Museum in Atlanta. "Some who lived through it are not happy to see it being talked about again."

Oney recalls an elderly woman standing in line to have him sign her copy. "Thank you for writing the book," she said. "This has been a heavy burden in our household."

The woman was a descendant of the Marietta police chief, another member of the lynching plot.

Chuck Clay, a member of the Legislature and candidate for the Republican nomination to Congress, doesn't feel anything but scorn for his great-uncle, Herbert, the man buried not far from Mary.

"Vigilante justice isn't just fine," he said.

Clay added that people like his great-uncle are scarier than the mob itself "because they manipulate the mob."

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