The Washington herald. [volume] (Washington, D.C.) 1906-1939, 1915-02-26
Queries WORRY
FRANKS FRIENDS
Troubled by Questions d.
rected at Attorney by Su-
preme Court Justices.
FATE HINGES ON HEARING
Lawyer Insists Right to Be Present
at Tnal Is Consti-
tutIonaI

Arguments in the Supreme Cour,
yesterday. in the appeal of Leo NJ
Frank. of Atlanta, convicted of the
murder of Mary Phagan, and under
sentence of death, were enlivened by
sharp exchange between the court
and Louis Marshall, of New York, at
| torney for Frank. Various and con-
| the interchange.
At times it seemed to the lay mind
that the court pulled the last prop
from under the Atlanta man. The
argument by Louis Marshall occupied
all the time allotted to the case yes
terday, and was followed with the closest
attention from the bench.
Each state to Be Judge.
As. MIR. Marshall emphasfzed IN.
point that the defendant had been
denied the constitutional right TO be
present in the court when the verdict
was returned. the Chief Justice call
ed attention 10 the fact that in some
Jurisdictions a verdict by divided
jury had been sustained. His point,
apparently, was that each State was
the judge Of what due process"
means.
Justice Pitney observed that If it
lay in the power OF the State to take
away trial altogether. why not take
away an incident of the trial?
The attorney commended, apparentlv.
that due process" of law meant the
same thing in the Federal as in the
State Jurisdiction. Justice Pitney de-
clined to concede this.
Says Right i. Fundamental.
The right TO be present is constitu-
tional right" said Mr.. Marshall in his
argument. 1T Is part of the right to be
heard"
y Chief Justice White interrupted the
lawyer to ask:
rs 1t your argument that in a Jury
trial where the accused is not present
he has not been heard, and the trial has
been illegal and he must go free"
Mr.. Marshall replied that the right to
be present was not one which the ac-
cused could voluntarily or involuntarily
waive.
The right TO be heard" said Mr.. Mar
shall. includes the right to be present
at the final stages OF the trial as we'll as
the earlier stages"
The Chief Justice, questioning Mr.. Mar
shall in regard to his ins;stence on The
right OF the prisoner to be heard, pointed
out that Frank actually was heard -,
length; that he testified in his own he
half and was present in the courtroom
except when the verdict was rendered
Taking up his allegation that the mob
spirit pervaded the courtroom. Mr. Mar
shall said that the crowd was permitted
even to hang over the jury box and
whisper in a way TO be overheard by the
jurors.
Justice Holmes admitted that his inter
est in the point that mob violence had
interposed to prevent due process" was
keener than in any other point on which
the defense relied
Says Right Is Funda mental.
The arguments will continue today. Mr..
Marshall has half an hour remaining.
The attorney general of Georgia will
speak in opposition to Franks appeal.
The case will close today.
Franks friends seemed disturbed YES
terday by the questions directed at
his lawyer from the bench But the
history of proceedings in the Supreme
Court proves that decision of that court
cannot be predicted safely from the
questions asked from the bench.