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Pressed to Death

Freedom of the press is essential to democracy – it is protected by the First Amendment to the United States Constitution, and it is a fundamental right not only for the publishers but also of the people to learn the news. Does this all-important right carry with it responsibility? Should it? Does the freedom to print nearly anything also require constraints when it is false or inflammatory?


The musical Parade recounts the trial, conviction, and lynching of Leo M. Frank in Georgia spanning from 1913 until 1915. There are two newspaper reporters in the play, both real historical men: Britt Craig (who really did break the story of the death of Mary Phagan) and Tom Watson (who really did ignite incredible anti-semitism surrounding the trial).

If you have not seen Parade, here is the story in a nutshell: in Atlanta, Georgia, in 1913, a 13-year-old factory worker was found dead, clearly the victim of a homicide. The factory supervisor, Leo Frank, a college educated Jewish man from Brooklyn is accused, tried, convicted, sentenced to hang, has his sentence commuted to life in prison, and gets kidnapped from prison and lynched. There is virtually zero chance that Frank committed this horrible offense and virtually 100% chance that a key witness for the prosecution who was cajoled and induced to testify against Frank by a smarmy prosecutor actually did kill this child.


Newspaper articles about Leo Frank, none of which was based on anything resembling truth or good reporting, enflamed the entire community against him. In short, he did not have a fair trial. Appeal after appeal failed. One point not raised in the play, but important to legal history, is that 4 months before he was lynched, the Supreme Court denied his petition appealing the denial of a writ of habeas corpus filed in the United States District Court for the Northern District of Georgia. But, it did so with an opinion. And a dissent. As per usual, the dissent is the more interesting of the decisions. Frank v. Mangum, 237 U.S. 309 (1915).


The primary issue of discussion was one of due process of law and whether the atmosphere in the venue with incendiary newspaper articles and a mob justice mentality denied Frank due process of law at his trial; was the jury - and the judge - so influenced by the antisemitism that it failed to judge the case on the admissible evidence alone? The Court spent an awful lot of words to aver that the trial was fair. Justice Holmes had a very different opinion.


Noting that the trial took place in a courtroom packed full with spectators hostile to the defendant with a judge so concerned with safety that he conferred with the chief of police and National Guard and then all but barred the defendant and his counsel from being present in court for the verdict (and they were not in court for the verdict), the scales of justice tipped against a fair trial within the meaning of the due process clause of the Fourteenth Amendment. He went on to note that the press had written vitriolic pieces about the case; the prosecutor received a standing ovation when he walked into court; and the cheering in and out of the courtroom upon the verdict was so intense that the judge could not hear individual jurors as they were polled.


The question then was whether the trial satisfied Frank’s right to due process or whether this was actually a case of mob rule. If the latter, Holmes wrote that the jurisdiction of the case could fall to the federal government to override the findings of the state court. Framed as a jurisdictional option, what it sounds like is that the federal court could review evidence outside the record (an old-style habeas corpus hearing impossible to obtain under the horrific, misguided, and draconian AEDPA which should really be repealed, but I digress) along with any evidence from trial to determine whether the trial passed constitutional muster.


According to Holmes, if even one juror was even a little bit swayed by the concerted effort of the mob for a guilty verdict (regardless of the evidence), the trial was manifestly unfair and did, in fact, deny the defendant his right to due process of law. Where the judge (who would later have so many misgivings about the case that he petitioned the governor to reopen the matter) believed that the defendant and his counsel would be in physical danger at the reading of the verdict, Holmes averred that there is an undeniable imposition of mob rule on the trial itself. Because that fact rendered the trial constitutionally defective (that is, it created a structural error in the trial), the federal courts had a duty to remedy the erroneous conviction. “We do not think it impracticable in any part of this country to have trials free from outside control. But to maintain this immunity it may be necessary that the supremacy of the law and of the Federal Constitution should be vindicated in a case like this." Frank v. Mangum, 237 U.S. at 349.  


In an eerie prediction, Holmes declared, Id. at 349-350:


 supposing the alleged facts to be true, we are of opinion that if they were before the supreme court, it sanctioned a situation upon which the courts of the United States should act; and if, for any reason, they were not before the supreme court, it is our duty to act upon them now, and to declare lynch law as little valid when practised [sic] by a regularly drawn jury as when administered by one elected by a mob intent on death.


Leo Frank was, effectively, lynched twice: once at his trial and then when his sentence was commuted and a mob strung him up by the neck.

 

A free press is invaluable; protecting reporters, news, dissemination of facts, and critical knowledge – even when, especially when, we do not like the outcome - truly is the job of every citizen. Indeed, fear of dissemination of truth in regard to cronyism, corruption, violence, and crimes force dictatorships to shun a free press and rely exclusively on propaganda, conspiracy theories, and cultish conformity. But when the press itself riles up the populace through propaganda without a basis in fact forcing an unjust verdict, or ignores horrible actions by a popular (or populist) official, nobody wins.

 

It is impossible to pretend that mob action, and even mob rule, has not affected American history. Every lynching, perhaps especially those which got no press at all, illustrates this ugly point. Although Leo Frank was vilified in local press prior to, during, and after his trial, he also got national press that was much more sympathetic. Leo Frank’s murder was publicized widely because he was a New Yorker in Georgia, he was Jewish, his trial was a sham, and he had the means to hire well regarded attorneys who argued his case up to the Supreme Court of the United States. It does not make it worse than the other countless lynchings that received little or no media coverage; each and every lynching was, and is, a tragedy and a national disgrace.

 

No matter where we are in the world, Jewish people carry a sadness, a fear, and a concern about exclusion and expulsion and exile because our history is laden with discrimination and oppression. The antisemitic media coverage of Leo Frank's trial was not out of the ordinary. The nascent Anti-Defamation League formed with the mission to secure fair treatment for all people at around the same time. Among many of its courageous battles, it fought to rid the free press of vulgar stereotypes and tropes when describing Jewish people from the New York Times and the Associated Press to Henry Ford’s Dearborn Independent to Father Coughlin. It was involved in the Leo Frank matter and was instrumental in obtaining a pardon for Leo Frank in the 1980’s.


In Frank's case, the press and antisemitic reporters were undeniably a culprit in the verdict and the lynching. The stereotypes were so outlandish that they sparked the creation of the Anti-Defamation League. Although partisanship in programming has not gone away, and may have increased in some ways, reporters rarely voice their religious, racial, and ethnic biases as they did over 100 years ago. Yet, the need for the Anti-Defamation League has, sadly, only grown.


But, the question irking the Court and moving Holmes and Hughes to dissent in Frank v. Mangum, supra, lingers. How do we gauge whether trials are fair when the atmosphere surrounding the case becomes a circus with mobs of people pressing for a specific verdict, the media - now national and much more easily spread - reporting on the mob as well as the case itself, and a justice system equally unwilling or unable to figure out where the line is when it promises to guarantee due process of law?

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