The sun. [volume] (New York [N.Y.]) 1833-1916, 1915-02-26
SUPREME COURT HAS
quiz ON FRANK CASE
Louis Marshall, Defendants
Attorney. Sharply Cues
toned by Justices.
FRANKS FRIENDS WORRY

WAstfSGroN. Feb. 25.--The argument
In the Supreme Court in the appeal OF
Leo NJ. Frank of Atlanta. convicted OF
the murder OF Mary Phagan. the fac
tory girl. and under sentence OF death.
was cnlivencd to-day by a sharp col
loquy between the court and Louis Mar
shall Of New York. attorney for Franl;
Various and conflicting conclusions were
drawn from the colloquv.
At times it seemed to the lay mind
that the court pulled the last prop from
under Frank. The argument by Louis
Marshall. which occupied all Of the time
allotted to the case to-day, was fol.
lowed witt the closest attention from
The bench
As The argument proceeded md Mr..
Marshall was emphasizing the point tina;
the defendant had been denied his con-
stitutional right to be present In the
court when the verdict was rcturned the
Chief Justice called attention TO the fact
that In some jurisdictions a verdict by
u divided jury had been sustained.
Ills point apparently vas that each
state was the Judge Of what due proc
ass" means He cited the fact that
IN louisiana. for example. there is no
'ommon law practice and that 1t is USE
iess therefore TO cor,end in a Federal
court that Common law forms must be
rollowed or due process" has been de-
nlcd.
Justice Pitney observed that II II lay
- the power Of the state to take away
fr'al altogether, VIII not take away
an Incident of the trial.
Mr.. Marshall contended apparently
that due process OF law meant tn
same thing In the Federal as IN the
state jurisdiction. Justice Pitney de-
ci!ned TO concede this.
The Right to he Present.
The right 20 b. present IL a con-
stitutionai right" said Mr.. Marshall in
his argument. 1T is part Of the right
10 he heard"
Chief Justice white interrupted the
lawyer TO ask
"ls IL 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 20 free"
Mr.. Marshall replied that the right
10 he present was not one which the ac-
cuscd could voluntarily o. .nvoluntarily
waive.
"'The right 10 30 heard" said Mr.
Marshall. Includes the right to b,
present at the final s:ages OF the tria'
as well ~ the earlier stages"
The Chief Justice. questioning Mr.
Marshall in regard 10 his inslstence or
the rgl: ~ the prisoner - be heard
pointed out that Frank actually was
heard at length, thai ne testified In his
own behalf and was present in the courI
room except when thu verdict was rem
dered.
Taking up his allegation that Tho
mob spirit pervaded the court room
MIR. Marshall said that the crowd wa
permitted even to hang over the jury
box and whisper In a way to be over.
heard by the Jurors.
Danger OF violence.
Ny Marshall told Of the conferenc.
In open court before the Jurors between
the presiding Judge and the Chicf %
Police and the Colonel OF a militia
resiinent-both the latter being known
TO the jurors-as tending to emphasiz,
in the eyes of the Jury the danger OF moi
violence supposed to threaten them.
Both tho Cn'cf Justice and justice
r,tney asked Mr. Marshall II these fact
We're uucontcsted and whether they h't
been Ia a before the Supreme Cour. o
Georgia when the ,r'll In the lowe
court was sustained Mr.. Marshall re
Piled that some Of the facts had beer
laid before the supreme Cour, %
Georgia, but that the rulings on pro
celurc foreclos.-i a full discussion %
these aspects ~ the trial
Justice Hughes asked Z these state
ments OF fprt had boon denied an
justice INeN Ntlt the Tffb'l ~ fIltf
to show thai the court had decided N,
questions before IL simply on technical
grounds.
Justice " lines admitted that y : IN
teres' iN the point that mob violenc" hat
!utcrposed to prevent due process W.
krensr thar in an, other point o. whiCl
the defence relied. 50 Attorney Marshal
carefully read from the record how
demonstrative crowd filled the sou
y "a -, aHl gttwrnhNIal ~ lnI .N.Araf
every unfavorable Development TO tn
defendant and Kissed when the tid'
seemed 20 turn in his favor how whe,
the verdict Of guilty was returned tn
cheering drowned out the proceed ngs %
=. the court and how the prosecutor wa
borne in triumph frlm the court roc
on the shoulder Of the mol mcnhcrs
The Arguments Will close tomorrow
Mr.. Marshall has half IN YOUR remain
q. ,ng The Acknowledgement OF Georgi.
will speak in opposition TO Frank's APP
peal,
Franks friends seemed disturbed T.
day b, the questions directed at hi
'awycr from the bench, hut the histor!
OF proceedings In tho supreme Cour
proved that a dco sion of that court can
not he predicted safely from tho cues
r tons asked from the bench Not infTc
quently these questions are directed 4
: develop the point in which the court /
| mos, Interested and TO bring out IN
!, argument in all It's phases.