Part 3

At this juncture, the defense introduced two letters which it claimed would satisfactorily explain Mrs. Surratt’s April 14th trip to Surrattsville. The first was signed by George H. Calvert, Jr., and was dated April 12th. When Mr. Calvert took the stand, he identified his letter which insisted that Mary Eugenia “pay the balance remaining due on the land purchased by your late husband.” The second communication, which had been written by the defendant to John Nothey from Surrattsville on April 14th, demanded that he settle his debt to her “within the next ten days” or she would “settle with Mr. Calvert and bring suit against you immediately.” B. F. Gwynn, who had read this note to the illiterate Mr. Nothey, said he had received it from Mrs. Surratt at the tavern on the afternoon of the 14th.

Lloyd had previously testified that he had been “right smart in liquor” on that fateful Good Friday. The defense team saw nothing to be lost by exploiting this admission to the fullest. Gwynn had seen him on the Marlboro road at 4:30 that afternoon and “he had been drinking right smartly.” Joe Nott, the bartender at Lloyd’s tavern, claimed that his employer “had been drinking a good deal; nearly every day and night, too, he was pretty tight. At times, he had the appearance of an insane man from drink.” As far as the 14th was concerned, “he was pretty tight that evening.”

Zad Jenkins, Mrs. Surratt’s brother, thought that Lloyd “was very much intoxicated at the time.” Richard Sweeney, who had run into the tavern owner on the Marlboro road, remembered that “he was considerably under the influence of liquor and he drank on the road.” James Lusby had ridden back to Surrattsville with him, and said he was “very drunk on that occasion.” Mrs. Offutt thought that her brother-in-law was “very much in liquor, more so than I have ever seen him in my life.” So much so, in fact, that he had become deathly ill shortly after returning from Marlboro and had to lie down. But Lloyd was evidently a man of great recuperative powers, because she had seen him heading back to the barroom a few minutes later.

As the trial dragged on, it was obvious that the Judge Advocate was relying heavily on Mrs. Surratt’s refusal (as he called it) to recognize Payne in the vestibule of her house on the night of April 17th. But Zad Jenkins swore that her “eyesight is defective,” while her daughter, Anna, testified that “my mother’s eyesight is very bad, and she has often failed to recognize her friends.” It was only her vanity, Anna said, that kept her from wearing glasses. Honora Fitzpatrick, who shared Mrs. Surratt’s room, said that her landlady had “complained that she could not read or sew at night, on account of her sight. I have known of her passing her friend, Mrs. Kirby, on the same side of the street, and not seeing her at all.” Honora had also been unable to identify Payne that night until “the skull-cap was taken off his head.” Mrs. Eliza Holahan, another boarder, knew that “Mrs. Surratt’s eyesight was defective.” Anna Ward, an old friend, stated that the defendant had frequently “failed to recognize me on the street”

The rest of the case for Mrs. Surratt consisted of evidence of her good character and loyalty to the Union. Anna Ward knew her as “a perfect lady and a Christian,” while four Catholic priests attested to her religious devotion. Her brother recalled that she frequently gave “milk, tea and such refreshments as she had in her house to Union troops when they were passing.” Rachel Semus, whom, Pitman noted, was “colored”, had been the Surratt cook for six years. She remembered that her employer had “fed Union soldiers at her house, sometimes a good many of them; and I know that she always tried to do the best for them that she could, because I always cooked for them.” Rev. E. F. Wiget, the president of Gonzaga College, had “always heard everyone speak very highly of her character.” John and Bill Hoxton, Surrattsville neighbors, had “never heard her utter a disloyal word.”

On June 13th, the defense suddenly recalled Mrs. Offutt. As she took the stand, Aiken told the Commission “that at the time Mrs. Offutt gave her testimony before, she came here very unwell. If I have been correctly informed, she had been suffering severely from sickness, and had taken considerable laudanum. Her mind was considerably confused at the time, and she now wished to correct her testimony in an important particular.” Colonel Bingham was on his feet in a flash.

Q. Is it something you swore to here in court?

A. Of course, I took the oath when I appeared here.

Q. Do you want to correct anything you have sworn to here in court?

A. Yes, sir, I should like to do so.

There wasn’t much Bingham could do with an obviously determined lady, and he sat down as abruptly as he had gotten up.

Mrs. Offutt reminded Hunter and his colleagues that when she had testified on May 17th, the Judge Advocate had asked her whether Mrs. Surratt had handed her a package at Lloyd’s tavern on April 14th, and her answer had been “No.” Now, she remembered that “she did hand me a package and said she requested to leave it there.” Later on, she had seen it “lying on the sofa in the parlor.” After Mrs. Surratt had left for Washington, the witness had noticed that Lloyd went into the parlor and “had a package in his hand.” She thought that “after the package was handed to me, it might have been taken by Mrs. Surratt and handed to Lloyd, but I did not see her give it to him.”

As Clampitt reminded the Commission, “Mr. Lloyd, under oath, swore that he received a package from Mrs. Surratt. We wish to show that a package was received of Mrs. Surratt by Mrs. Offutt. We wish to show in this connection that it was the same package that Mr. Lloyd swore to. If we can show that this was the identical package that Mr. Lloyd swore to receiving, we can show that his testimony is not worth the snap of a finger.” But Mrs. Offutt did not know what was in the package; all she remembered was that Mrs. Surratt had given it to her around 5:30 that afternoon and she had “laid it down” on the parlor sofa. She had no idea of what had happened to it after that, except that she had seen a package in her brother-in-law’s hands when he entered the house a few minutes later.

When the defense rested on June 13th, the government trotted out John Ryan, Frank Smith, James P. Young and P. T. Ransford, all of whom swore that Lou Weichmann, its witness-in-chief, was a very trustworthy fellow indeed. But only one--Young--had known him for any length of time. John T. Holohan, who had occupied a second-floor room at Mrs. Surratt’s in early 1865, swore that he had never heard anyone mention his landlady’s bad eyesight. With the testimony of six Prince George’s County neighbors that Zad Jenkins was, among other things, “one of the most disloyal men in the country,” the prosecution had shot its wad as far as Mrs. Surratt was concerned.

The closing arguments began on June 16th and continued for twelve days. While they droned on, John Clampitt tried to introduce the joint affidavit of Louis Carland and John P. Brophy, two friends of Weichmann, who swore that he had told them that he had perjured himself during the trial. He, and not Mrs. Surratt, had suggested that he try to borrow Booth’s buggy for the April 11th trip to Surrattsville. He had also informed Carland and Brophy that he had told a fellow clerk in the War Department all about the kidnap plot as early as February, and that Stanton had forced him to testify against Mrs. Surratt despite the fact that Lou thought she was innocent. But he had played along with the Secretary of War because “I didn’t want to hang.”

But Holt wasn’t going to let a piece of notarized paper spring Mary Eugenia. He rejected it as hearsay and, when Clampitt offered to produce Brophy in person, the Judge Advocate thumbed down his request on the ground that it was too late to call another witness. But on June 27th, eleven days after the prosecution had closed its case, Holt called one John Cantlin to testify to an anonymous advertisement printed in the _Selma_ (Alabama) _Dispatch_ on December 1, 1864, offering to kill Lincoln, Seward, and Johnson, for one million dollars. Brophy felt so strongly about the rejection of his affidavit that he tried to see Andrew Johnson about it but the President was incommunicado as far as the trial was concerned.

In his closing argument, Reverdy Johnson pointed out that the Military Commission lacked the power to try Mrs. Surratt. “As counsel for one of the parties,” he told its members, “I should esteem myself dishonored if I attempted to rescue my client from a proper trial for the offense charged against her, by denying the jurisdiction of the Commission, upon grounds that I did not conscientiously believe to be sound. And, in what I have done, I have not more had in view the defense of Mrs. Surratt, than of the Constitution and the laws. In my view, in this respect, her cause is the cause of every citizen. And let it not be supposed that I am seeking to secure impunity to any one who may have been guilty of the horrid crimes of the night of the 14th of April. Over these, the civil courts of this District have ample jurisdiction, and will faithfully exercise it if the cases are remitted to them, and guilt is legally established, and will surely award the punishment known to the laws.”

Johnson left it to his youthful associates to discuss the substantive case against Mrs. Surratt and young Aiken did his best. What had “two months of patient and unwearying investigation, and the most thorough search for evidence that was probably ever made” developed insofar as his client was concerned? Only that she knew Booth (and who in Washington did not?), that she had taken a message to Lloyd (so had a hundred others), and that she had failed to recognize Payne (bad eyes in a dim light). The chief witnesses against her--the unreliable Weichmann and the drunken Lloyd--were both trying to save their own skins. He ended in a blaze of rhetoric, asking the Commission’s members to disregard “suspicion fastened and fed upon the facts of acquaintance and mere fortuitous intercourse with that man in whose name so many miseries gather, the assassinator of the President.”

Colonel Bingham, who summed up for the prosecution, ended his two-day presentation with the observation that Mrs. Surratt was “as surely in the conspiracy to murder the President as was John Wilkes Booth himself.” After all, wasn’t her house the headquarters of the conspirators? And didn’t she deliver a fieldglass to Lloyd and instruct him to have the carbines ready? Would an innocent woman fail to recognize a man who had been her boarder? If she wasn’t involved in the plot against the President, why did Booth always ask for her when he visited H Street? As far as the Special Judge Advocate was concerned, the questions answered themselves.

When he sat down late in the afternoon of June 28th, the court was cleared for the last time and the Commission began its deliberation. It took only minutes for it to decide that Payne, Herold and Atzerodt should hang. Dr. Mudd, Mike O’Laughlin and Sam Arnold were sentenced to “hard labor for life,” while Ed Spangler drew six years. But the Commission couldn’t make up its collective mind about Mrs. Surratt. On its first ballot, only four of its members voted to execute her. The other five could not be convinced that the evidence had disclosed that she was guilty of anything more than running a boardinghouse that catered to a mighty strange lot of roomers.

But two days of Washington’s heat did what all of the Judge Advocate’s arguments had failed to accomplish. At noon, on June 30th, the five recalcitrants voted that “the said Mary E. Surratt be hanged by the neck until she be dead, at such time and place as the President of the United States shall direct.” However, they insisted on appending a petition for commutation of the “sentence of death ... to imprisonment for life” to the record of the case which Holt was to submit to Johnson. On July 5th, the President formally approved the Commission’s sentences and ordered that Herold, Atzerodt, Payne and Mrs. Surratt be executed “on the seventh day of July, 1865, between the hours of ten o’clock a.m. and two o’clock p.m. of that day.” Whether he ever saw the recommendation for mercy or not, no one could say.

But Clampitt and Aiken weren’t ready to call it quits yet. At two o’clock on the morning of July 7th, the two young men persuaded Andrew Wylie, one of the Justices of the Supreme Court of the District of Columbia, to issue a writ of habeas corpus on the ground that prosecution by the Military Commission had deprived Mary Eugenia of her right to trial by jury. Major General W. S. Hancock, the commander of the Middle Military District, was ordered “to produce ... the body of your said petitioner” at ten o’clock the next morning. But Stanton had an ace up his sleeve. When Hancock, accompanied by Attorney General James Speed, walked into Judge Wylie’s courtroom, almost two hours after the time specified in the writ, he did not have Mrs. Surratt with him. What he did have was a message from the President, declaring that “I do hereby especially suspend this writ.” Judge Wylie had no choice--he yielded to the suspension.

The scaffold had been built in the courtyard of the Old Penitentiary Building. Just as General Hancock was presenting Johnson’s suspension order to Judge Wylie, Captain Christian Rath, the officer in charge of the execution, approved the drop. Four graves had been dug to the left of the gallows near the prison wall. At the side of each one was a pine box containing glass bottles in which the name of each defendant had been placed. Shortly before two o’clock, Mrs. Surratt, despite Payne’s last minute statement that she “was innocent of the murder of the President,” was led from her cell. Accompanied by two priests, she climbed the fifteen steps to the gallow’s platform where she sat in an armchair while an officer read the sentences aloud. Five minutes later, with her hands tied behind her back and her face covered by a white hood, she dropped into eternity.

On July 15th, the four surviving defendants, who had begun serving their terms in the Albany Penitentiary, were re-sentenced to “hard labor in the military prison at Dry Tortugas, Florida.” In 1867, O’Laughlin died of yellow fever, but Mudd was pardoned in 1868, and Spangler and Arnold one year later. In 1867, John Harrison Surratt, whom spectator Walt Whitman described as “very young ... with sharp eyes,” was tried by a Washington civil court for his part in the conspiracy. The jury voted eight-to-four for acquittal and the government decided to call it a day and dropped the charges against him. By this time, everyone knew that Stanton had suppressed Booth’s captured diary which contained an entry for April 14th, clearly indicating that it had not been until that very day that the actor had decided to kill rather than kidnap the President. Mary Eugenia had never had even a fighting chance.

2

_Atlanta’s Northern Jew_

The State of Georgia

_versus_

Leo M. Frank

The southern Negro stands halfway between slavery and freedom. On one hand, he is his own man, able to own property, to be compensated for his labor and even, in some areas, to vote. On the other, he must endure many forms of segregation, perform his community’s less desirable chores, and suffer whatever slings and arrows his white neighbors choose to send his way. But occasionally he finds himself an honest-to-goodness hero. This metamorphosis occurs whenever he mounts the witness stand to testify against another Negro whom, for one reason or another, the state wants to put out of the way. In Atlanta, in 1913, it didn’t seem to make much difference that the victim was a twenty-nine-year-old northern Jew.

After he graduated from Cornell, Brooklyn-born Leo M. Frank married a Georgia girl. With her parents’ help, he was able to buy a small interest in the National Pencil Factory, a medium-size enterprise which operated out of a four-story building on South Forsyth Street in Atlanta. National employed more than one hundred employees, most of whom were women, and Frank, who was also its production superintendent, directly supervised their work from his tiny second-floor front office.

The factory building was a narrow rectangular structure which ran 150 feet back from South Forsyth Street to a small alley. The entrance to the plant was through an enclosed hallway on the first floor. An elevator shaft was located in this hallway near the foot of a glass-enclosed stairwell. Behind this shaft there was a hatchway which opened into the basement. Outside of a boiler and some lockers for Negro employees, the cellar was empty.

The stairs led up to the building’s second floor where Frank’s small cubicle was located. His office opened into a large room where most of the plant’s clerical help worked. At the very rear of the building was National’s metal room where tips were attached to the ends of completed pencils. The metal room, which was separated from the rest of the second floor by a wooden partition, was entered by means of a double glass door. The actual manufacturing of lead pencils was performed on the third and fourth floors.

National’s employees were normally paid at noon on Saturday. However, Saturday, April 26, 1913, was a holiday--Confederate Memorial Day--and Frank had met his payroll the day before. But some of the girls who worked in the metal room had been laid off the preceding Monday because the plant had run out of pencil tips. Some of them decided to take advantage of the holiday and pick up the few dollars owed them for their single day’s work. One girl, fourteen-year-old Mary Phagan, who lived in an Atlanta suburb, decided to kill two birds with one stone--she would pick up her pay at the plant and then take in the parade which was scheduled to start at two p.m.

Mary ate an early lunch of cabbage and wheat bread and left her house at 11:45. She boarded a street car which let her off at the corner of Broad and Hunter Streets, just a block away from the pencil factory. She arrived at National shortly after noon and went immediately to Frank’s office where she received a pay envelope containing $1.25. She asked the superintendent whether a new supply of metal had arrived and, when he said “No,” she left the office, and he listened to her footsteps as she went down the stairs to the first floor. Only one other person was ever to see her alive again.

Fifteen hours later, Newt Lee, the factory’s night watchman, was making his rounds through the darkened building. In the cellar, near the back of the building, he found the body of Mary Phagan. The girl had been strangled and it appeared that she had probably been raped. Although no spermatozoa were found on her body or her clothes, the epithelium of the walls of the vagina was torn and bruised and her underwear, which was ripped, was spotted with blood. From the condition of her clothes, it was obvious that whoever had killed the girl had dragged her body along the cellar floor. There was a deep cut on her head and numerous bruises on her arms and legs.

Newt Lee was a Negro which was enough to make him a prime suspect. He was immediately arrested and thrown into the Fulton County Jail, and it seemed that the Atlanta police had more than enough to mark the case solved. But because somebody thought that Frank had appeared unduly nervous when he was informed of Mary’s death, the police decided to book him, too. Frank proved anything but an uncooperative prisoner. He hired private detectives to assist the Atlanta constabulary in its efforts to find the girl’s murderer, and persuaded his captors to allow him to spend some time alone with Lee in his cell in order to induce him to talk.

But the night watchman stuck to his plea of innocence and was soon released while his employer was held for the action of the grand jury. A garrulous prostitute informed the police that Frank had telephoned her the night before the murder and pleaded for a room. He had told her that it was a matter of “life and death.” She also swore that, on the day after Mary’s body was found, he had offered her a large sum of money to leave town. Although she later repudiated her entire story and disappeared, the damage was done and Frank, who was referred to by a local magazine as “this filthy, perverted Jew of New York,” was indicted on May 24, 1913, for Mary’s murder.

When the dead girl’s body was found, two notes, scribbled on sheets of paper ripped from a scratch pad, were discovered on the floor near her. Written in pidgin English, they claimed that “a long tall negro” had been making love to Mary and that “i write while play with me.” According to the author “he said he wood love me, laid down, play like the night witch did it, but that long tall negro did buy his self.”

The police were convinced that Frank had written the notes in an attempt to throw the blame on Lee. This theory was somewhat shaken when, on the Thursday after the murder, a Negro porter named Jim Conley was discovered scrubbing a bloodstained shirt in the factory’s basement sink. Conley, who was later described as a “low squatty Negro with a gingercake complexion,” was picked up and lodged in the county lockup where he languished for almost three weeks. However, when he finally convinced the police that he could not write, he was given back his shirt and released.

Then Harry Scott, a Pinkerton operative engaged by the pencil factory to solve the crime, discovered that Conley was much more literate than he had let on. Now thoroughly frightened, the porter was returned to jail where he poured out a tale of sex and murder that was sure to find ready listeners. He said that on April 26th he had stood watch for Frank, who habitually used the factory as seraglio, when the superintendent had assaulted and killed Mary Phagan. Then, after helping his employer hide the body in the basement, he had written the two notes which had been found near her corpse. In all, he told the investigators from the Solicitor General’s office four different versions of this story. As each one was investigated and found untenable, Conley assured his avid audience that “Sure, I lied but I swear to God I am telling the truth this time.” The following July, he was to tell a fifth story on the truth of which a man’s life was to depend.

Although Frank testified before the coroner’s jury and claimed that he neither knew Mary Phagan nor had killed her, he was swiftly indicted for her murder and his trial began on July 28, 1913, in the Fulton County Courthouse before Superior Court Judge L. S. Roan and an all-male jury. By the time the trial got under way, all Atlanta had prejudged the “Jew of New York” and the newspapers were off and running on an orgy of sensationalism that was not to die down until Leo Frank had become the symbol of the Gate City’s greatest shame.

Conley was, by all odds, the prosecution’s most important witness. Ordinarily, the testimony of a Negro who “always seemed to be kind of nervous or half drunk” wouldn’t have carried much weight in a Georgia court. But what Arthur Garfield Hays referred to as “counter-prejudices” were at work. To the rednecks, a Jew from Brooklyn was even worse than a “no-account nigger” and Conley’s audience was sublimely ready to believe every word he uttered.