I’m just a plainspoken Colorado criminal defense lawyer, but the way I see it…

Philosopher George Santayana said those who cannot remember the past are condemned to repeat it.

Though he has more on his time plate than most Americans, I don’t believe Joe Biden cannot remember Vietnam and Laos. He was a United States Senator when we pulled the last American soldiers out of there and the unexploded cluster bombs we left behind began a post-war toll on civilians that continues fifty years after. I don’t believe Joe Biden can’t remember that in Laos alone twenty-five thousand human beings, half of them children, have been dismembered or killed in the peacetime we left them.

It wasn’t for lack of memory that he’s now bequeathed the same legacy on the children and caregivers of Ukraine; it’s for lack of something else.

The moral center that caused one hundred twenty-three other nations to join the 2008 Convention on Cluster Munitions, promising “never under any circumstances” to use, develop, produce, otherwise acquire, stockpile, retain, or transfer to anyone, directly or indirectly, these things, is somehow missing in the United States, Russia, and Ukraine.

I get it about Russia and Ukraine: like our own once and future would-be king, Russia is ruled by a sociopath, Ukraine is fighting for survival, so both have already brought out the cluster bombs.

My disappointment in the U.S. runs a little deeper, back to the Vietnam, Laos, and Cambodia both Joe Biden and I remember, and what we did there.

We did the same thing in Iraq in 1991, and again in 2003. The same thing in 2001 and 2002 in Afghanistan.

Children are the most vulnerable in all those places for decades to come. Maybe for a hundred years.

“Cluster bombs sometimes look like beautiful things,” an Iraqi doctor told Human Rights Watch in 2003. “Children like to play with them.”

We’re enabling the same thing now.

To the child who fifty years from now picks up one of these beautiful things, in the moment before that child is obliterated, it will look like a gift of a toy or pretty bauble.

A gift from Uncle Joe.

I’m just a plainspoken Colorado criminal defense lawyer, but the way I see it…

A newsletter and blog with the title Drunk & Disorderly should, time to time, say something about folks who, time to time, get a little drunk and disorderly. Maybe not so much as folks two hundred forty seven years ago, but a little.

In virtually every state of the Union, police use only two measures to tell whether you’re carrying too much booze on your breath or in your blood. If your test comes back 0.05 to 0.079, the law presumes you really shouldn’t be driving, piles eight points on your license, but gives you another chance. If it’s 0.08 or better, the law presumes you’re drunk on your ass and you won’t be able to drive for a while.

But how can you tell when you’ve reached those levels, so you don’t make the mistake of driving yourself around town ducking cops? Rule of thumb: Unless you weigh 500 pounds, if you have more than two drinks of alcohol within half an hour of getting back in your car, you’ve likely reached one of those levels.

I prefer the old-fashioned way of telling if you’ve had too much to drink and drive. By old-fashioned, I mean real old-fashioned. By real old-fashioned, I mean 1592. That’s when Thomas Nashe penned, maybe while sober, “The Eight Kindes of Drunkennes.” It’s a good read, and you’re allowed to quote from it as much as you like, because the copyright has been expired almost as long as the English pamphleteer.

Here it is, the spelling and language a little modernized, in case anyone had trouble with that Olde English title:

The Eight Kinds of Drunkenness

The first is ape drunk: you leap, and sing, and holler, and dance for the heavens.

The second is lion drunk: you fling the pots about the house, call your hostess a whore, break the glass windows with your iPhone, and are apt to quarrel with anyone who speaks to you.

The third is swine drunk: you feel heavy, lumpish, and sleepy, and cry for a little more drink, and a few more clothes.

The fourth is sheep drunk: you feel wise beyond belief, even though you can’t put so much as two intelligent words together.

The fifth is maudlin drunk: you weep with kindness in the midst of ale, and kiss every man, woman, and child within pucker range, saying, “By God, dude, I love you. C’mon, you don’t think so often of me as I do you. I wish to God I didn’t love you so much.” Then you put your finger to your eye, to wipe the tears.

The sixth is Martin (Luther) drunk, when you’re so drunk you feel like you have to drink yourself sober before you can move.

The seventh is goat drunk, when you’re so drunk you can’t think of anything that doesn’t have a sweet little skirt or tight pair of pants on it.

The eighth is fox drunk, crafty drunk, as many of the Dutchmen be, who will never bargain but when they are drunk.

So, whether you’re ape, lion, swine, sheep, maudlin, Martin, goat, or fox drunk, which kind should inspire you to call that Uber?

All of them.

I’m just a plainspoken Colorado criminal defense lawyer, but the way I see it…

A suspect, not yet charged, asked me the other day what she should tell the police if they called. The answer, of course, is “nothing.”

But won’t that make them suspicious, she asked, afraid if she failed to seem cooperative, that might piss off the police. This is not a factor: police are permanently pissed off from what they have to see and do every day.

Police will not feel friendly toward you if you start telling them stuff. Not unless you enjoy your friends slapping handcuffs on you (save that for your other friends). Police don’t want you to tell them things so they can rule you out as a suspect. They are ONLY interested in ruling you IN. Think of that cop as your librarian: shh.

So say nothing if you are facing possible arrest, even when you think it impossible that you could be arrested.

Beyond that, when you are charged with or suspected of a crime, that is not the time to tell dinner stories. Say nothing about it, not just to police and prosecutors, but to anyone. Not your mom, not your brother, not your aunt, not your best friend. Police and prosecutors have a way of calling these people “witnesses.” Don’t talk to your spouse about it: spousal privilege doesn’t extend to all the people your spouse can’t help telling, and all the people those people can’t help telling. Don’t even talk to your dog; dogs have a much larger vocabulary than most people realize.

Bottom line when you’re arrested? Save it for your lawyer.

Editor’s Note: Alan Regel has practiced criminal law so far north of the equator that less prepared lawyers would freeze their law briefs clean off. He has lawyered in places where there are no places. He has spent his career in Nunavut and the Northwest Territories of Canada, and still works with survivors of abuse there, and with aboriginal and treaty rights.

When I invited him to participate in Drunk & Disorderly, he invited me in turn to take a look at some of the pictures of conditions under which he practices.

I did, and some of those pictures are below. All the pictures are his; the crackpot taglines, mine.

Editor’s Note: What could be worse than the murder of a child (Part 1), or the trial of her accused murderer (Part 2)?

You’re about to find out, as Mark Phillips and Aryn Phillips describe, in horrifying detail, what happened after the trial, first told in slightly different form in their book, “Trials of the Century.“

In retrospect, looking back through the experienced lens of a full century, it is hard to understand how a jury could have convicted Leo Frank on the mendacious and sensational testimony of Jim Conley. Most of those involved doubted his story, including the police investigators and Conley’s own lawyer, William Smith. Atlanta did not before have a reputation of religious prejudice. But there was something oddly enthralling in Conley’s telling, and something equally cold and unsympathetic in the icy demeanor of Frank. Added to the hostility that Atlanteans felt for the starchy educated carpetbagger, the contrasts of rich and poor, Southerner and Northerner, Jew and gentile, and the loud and unceasing demand for justice trumpeted by the city’s newspapers, deeply felt by each of the jurors, perhaps the conviction of Frank was inevitable.

Anti-Semitism certainly flared in its wake. The trial now concluded, the Constitution, the Georgian and the Journal no longer covered the Phagan murder as daily headlines. In their place, popular firebrand Thomas Watson and his weekly Jeffersonian picked up the cause in dark and disturbing tones. Beginning in March of 1914, its steady stream of anti-Semitic, anti-privilege and overtly violent reporting appeared on Atlanta’s streets. The paper referred to Frank as “a foul degenerate” and a “filthy and murderous Sodomite.” Statements included “Does a Jew expect extraordinary favors and immunities because of his race?” “It seems that negroes are good enough to hold office, sleep in our beds, eat at our tables, marry our daughters, and mongrelize the Anglo-Saxon race, but are not good enough to bear testimony against a rich Jew.” “This campaign of lies, abuse, defamation and race hatred gets worse and worse. It must be costing the Chosen People a lot of money.”

Appeals followed in natural course. In October of 1913, Judge Roan denied the motion for a new trial, although he stated, “Gentlemen, I have thought about this case more than any other I have ever tried. I am not certain of the man’s guilt. …But I do not have to be convinced. The jury was convinced.” The Georgia Supreme Court voted four to two to uphold the conviction in February, 1914. After the trial court rejected a second motion for retrial in November, the United States Supreme Court declined to review the case in December, and rejected a final appeal in April of 1915, but not without misgivings. Justice Oliver Wendell Holmes, Jr., in ruling against Frank, nonetheless wrote:

On these facts I very seriously doubt if the Petitioner [Frank] has had due process of law – not on the grounds of his absence when the verdict was rendered so much as because of the trial taking place in the presence of a hostile demonstration and seemingly dangerous crowd, thought by the presiding judge to be ready for violence unless a verdict of guilty was rendered.

His appeals exhausted, Frank was scheduled to hang on June 22, 1915.

Calls began immediately for the death sentence to be reduced to life imprisonment. Over the past twenty-four months, many of the prosecution’s witnesses had recanted. The biologist disclosed that subsequent tests showed that the hair found on the second floor was not Phagan’s. Albert McKnight, husband of the Franks’ maid, admitted to having been bribed to testify to what his wife had said to him regarding the defendant’s behavior on the night of the murder. Newspaper boy George Epps, who testified that Frank had known and admired Phagan, withdrew his testimony. Nina Formby, the brothel-keeper, admitted that her allegations regarding Frank’s calls to her on the date of the murder had also been entirely false. Other factory workers recanted as well. Witness C. Brutus Dalton, who had corroborated Conley’s descriptions of Frank’s Saturday meetings with other women, now confessed that his testimony was fabricated by the Atlanta police. The murder notes turned out to have been written on expired factory forms kept in the basement, not in Frank’s office. Most revelatory, Conley’s own attorney, William Smith, announced that he believed Conley guilty of Phagan’s murder and Frank innocent.

Northern newspapers began to take up the cause. New York papers particularly saw the conviction of Frank as a miscarriage of justice perpetrated on a Northern Jew. The New York Times, Jewish-owned, was perhaps unsurprisingly vocal in support of Frank, but so too were the World, the Herald and Hearst’s Journal, all of which began to editorialize openly of Frank’s innocence and for commutation of his sentence.

Watson and the Jeffersonian fired back. “If Frank’s rich connections keep on lying about the case, SOMETHING BAD WILL HAPPEN” and “[I]f the Prison Commission or the Governor undertake to undo – in whole or in part – what has been legally done by the courts that were established for that purpose, there will almost inevitably be the bloodiest riot ever known in the history of the South.”

Public demonstrations in support of Frank erupted in cities all through the North. In May of 1915, delegations arrived in Atlanta with petitions containing over two million signatures requesting clemency. Written pleas arrived bearing the signatures of senators from six states and the governors of eight. In Georgia, however, particularly in Phagan’s hometown of Marietta, protests demanding the death of Frank continued, with participants sometimes numbering in the thousands.

The Georgia Police Commission met on May 31, 1915, to consider commutation of the sentence, hearing evidence over two days. Submissions included a plea from Conley’s lawyer, William Smith (“I swear to you that I believe Leo M. Frank to be innocent. With all the earnestness and seriousness of my life, I appeal to you not to let him die.”) and a written submission from trial judge Leonard S. Roan, who had succumbed to cancer six months earlier:

After many months of continued deliberation, I am still uncertain of Frank’s guilt. The state of uncertainty is largely due to the character of the negro Conley’s testimony, by which the verdict was evidently reached…

The execution of any person whose guilt has not been satisfactorily proved to the constituted authorities is too horrible to contemplate…hence at the proper time I shall express and enlarge upon these views directly to the governor and the prison commission. However if for any cause I am prevented from doing this, you are at liberty to use this letter at the hearing.

Despite all that it heard, on June 9, 1915, after eight days of deliberation, the Commission ruled against Frank on a vote of two to one.

With thirteen days until Frank’s execution date, the final decision came to rest with Georgia Governor John M. Slaton. Nothing could have been less welcome. A native Georgian, a lawyer by training, Slaton had only seventeen days remaining in his term. Pressures that had been building for months reached a crescendo in the days before Frank’s scheduled hanging. Slaton received letters encouraging commutation of the sentence from citizens public and private, including U.S. Vice President Thomas Marshall, and from editors of newspapers across the country, including no less than William Randolph Hearst, whose Georgian had reported so loudly and consistently on the murder and subsequent trial. Hearst wrote:

I have heard you say that any man could do the right thing in an ordinary situation, but the test of a really great and genuine man was to be able to do the right thing in an exceptionally critical and important situation.

Slaton commenced hearing arguments in his office on Saturday, June 12th. Frank’s lawyers pleaded for the government to commute the sentence to life imprisonment, believing that additional time would lead to further evidence of his innocence and thus his freedom. Hugh Dorsey was present to press the prosecution’s arguments. Slaton toured the factory and examined the basement where Phagan’s body had been found. Then on Wednesday, June 16th, with only six days until the date set for execution, he boxed up the records and testimony of the trial and retired to his sprawling estate outside of Atlanta to study. Over the next four days, he left only once, to return to the factory to test the elevator.

It all came down to the pile of human excrement that Conley admitted to leaving in the shaft of the elevator that Saturday morning before the murder. It was observed as undisturbed when the police inspected the factory basement later that night when they were called to the murder scene. It was mashed the first time when police brought Frank down the elevator to inspect the premises early on the Sunday morning, several of the investigators recollecting the noxious odor when the elevator car reached the bottom. Unremarked at the time, it meant that the elevator had not been used on Saturday, and that Conley had lied when he described how he and Frank had brought the body down the elevator from the second floor.

On Sunday the 20th, just before midnight, Governor Slaton had Frank moved under cover of darkness from the police station where he had been housed for more than two years to the state prison in Milledgeville. On Monday morning, Slaton summoned the press to his suburban estate and announced that he was commuting the sentence:

All I ask is that the people of Georgia read my statement and consider calmly the reasons I have given for commuting Leo M. Frank’s sentence. Feeling as I do about this case, I would be a murderer if I allowed that man to hang. I would rather be plowing in a field than to feel for the rest of my life that I had that man’s blood on my hands.

It was the end of his political career and he knew it. Atlanta erupted in protest, and martial law was declared. Despite the efforts of the city’s police, several thousand rioters descended on the governor’s home, only barely repulsed by militia with fixed bayonets. Furious Atlantans hanged him in effigy with the sign “King of the Jews.” On Slaton’s next appearance in town several days later, an attempt was made on his life.

His term up, Slaton and his wife left Georgia and didn’t return for ten years. She had told him, “I would rather be the widow of a brave and honorable man than the wife of a coward.”

Frank’s reprieve was not to last. Four weeks later, a fellow Milledgeville Prison inmate crept up on the sleeping Frank in the middle of the night and slashed his throat from ear to ear, narrowly missing his carotid artery. Two fellow inmates, both doctors, immediately provided aid, and when the prison physician arrived the three operated for two hours to save his life. Investigation determined that the assailant was deranged and had acted alone. After seventy-two hours it became clear that Frank would survive, and he was moved to a private room to convalesce. “I must live,” he told the prison doctor. “I must vindicate myself.”

Tom Watson and the Jeffersonian continued to pour invective, calling for Frank to be lynched. “Are the old glories gone?” Watson asked. “Are the old lessons lifeless? Are there no feet to tread the old paths?”

Watson’s challenge was taken up. Late in the evening of August 16th, a band of well-organized citizen-soldiers calling themselves the Knights of Mary Phagan fell on a surprised and slumbering Milledgeville Prison, disarming the guards without a shot, cutting telephone lines and disabling the prison vehicles to avoid pursuit. They seized Frank from his bed and bundled him into a waiting automobile.

The Knights were no ordinary rabble. The twenty-five members included ringleaders Joseph Mackey Brown, a Harvard-trained lawyer and Georgia’s governor preceding Slaton, E. P. Dobbs, mayor of Phagan’s hometown of Marietta, and Eugene Herbert Clay, former mayor of Marietta and son of Georgia Senator Alexander Stephens Clay, later elected himself to the Georgia Senate. Other members included a judge, police officers, former sheriffs, lawyers, bankers, farmers, and merchants.

Frank was driven seven hours back to Frey’s Gin, a wooded area just outside Marietta. Still wearing his night shirt, he was handcuffed, his legs tied together at the ankles, a khaki cloth tied around his exposed midsection, and made to stand on a table. A noose was placed around his neck. Witnesses reported him to have been calm and possessed. Asked if he had anything to say, he responded “I think more of my wife and mother than I do of my own life.” After agreeing to return Frank’s wedding ring to his wife, the Knights hanged him.

Photographs of the lynching taken in the spreading morning light show Frank’s body hanging from the tree, surrounded by spectators in shirtsleeves and boaters making no effort to hide their identities. One man is holding a camera. In another, looking on is judge Newton A. Morris, the Knight who had presided at the hanging and kicked the table out from under Frank’s legs.

That morning, thousands came to see the body. Pieces of his clothing were cut off by souvenir hunters. The body was taken down and crushed under booted heels. When the mutilated corpse was finally deposited at Greenberg & Bond’s Mortuary, forty troopers were required to guard it from the crowds. Frank was buried in an intimate ceremony at Mount Carmel Cemetery in Queens, New York, attended by his family.

In every corner of America outside the state of Georgia the lynching of Leo Frank was condemned in the harshest possible terms; in newspapers, editorials and pulpits, from the man on the street to President William Howard Taft, who called it “a damnable outrage.”

In Georgia, while the lynching was denounced by all of the leading newspapers, though not by the Jeffersonian, inquests into the death of Frank were stymied or misdirected. The coroner’s grand jury was directed by one of the Knights, and the jury itself numbered seven more. Although thirty-five witnesses were called, and the perpetrators well known, none were identified. The grand jury concluded “We have been unable to connect anybody with the perpetrators of this offense or to identify anyone who was connected with it.”

The effects of Frank’s conviction and death were far-reaching. In September of 1913, the B’nai B’rith created the Anti-Defamation League. In November of 1915, the Knights of Mary Phagan burned a gigantic cross at the top of Atlanta’s Stone Mountain, inaugurating the revival of the Ku Klux Klan.

Following the lynching and in a new era of prejudice, approximately half of Georgia’s three thousand Jews left the state. The number did not include Frank’s widow Lucille, who returned from the funeral in New York to live quietly in Atlanta, where her husband’s wedding ring, delivered as promised, awaited her. She worked the glove counter of the J.P. Allen store until her death in April of 1957, and never discussed the case publicly.

Conley’s lawyer, William Smith, who had fought so hard to save Frank, no longer was able to practice law in Georgia. He went to work in a shipyard, then found employment in a detective agency in New York City. Five years later he passed the New York bar and started over. Jim Conley went from celebrated Negro to oft-convicted drunk, disappearing from public records in 1941. There is no record of his death or burial.

Prosecutor Hugh Dorsey became the next governor of Georgia, serving two terms, after which he sat as a state court judge until his death in 1948.

Tom Watson, who had called for and then celebrated the lynching of Leo Frank in the pages of the Jeffersonian, continued to influence public opinion in Georgia, and to profit from it. Circulation of the Jeffersonian, at five cents a copy, rose from 25,000 in March of 1914 to 87,000 in September of 1915. He was elected U.S. Senator in 1920 and Georgia governor the following year.

In 1982, eighty-five-year-old Alonzo Mann, Frank’s one-time office boy, gave his deposition to lawyer John J. Hooker. He told the truth for the first time. On that Saturday morning, nearly seventy years before, he had walked into the National Pencil Company and seen Jim Conley, by himself, carrying the unconscious Mary Phagan. The Negro threatened to kill him if he told anyone. Mann had, nonetheless, told his parents and they had instructed him to say nothing about it. Thus he had kept his secret when interviewed by the police, and when called to testify at Frank’s trial.

In 1983 the Georgia State Board of Pardons and Paroles granted a pardon to Leo Frank. In its decision the Board explained:

Without attempting to address the question of guilt or innocence, and in recognition of the State’s failure to protect the person of Leo M. Frank and thereby preserve his opportunity for continued legal appeal of his conviction, and in recognition of the State’s failure to bring his killers to justice, and as an effort to heal old wounds, the State Board of Pardons and Paroles, in compliance with its Constitutional and statutory authority, hereby grants to Leo M. Frank a Pardon.

The site of Frank’s lynching at Frey’s Gin has disappeared, buried beneath the concrete of Interstate 75 on its modern route north from Atlanta. Writes author Steve Oney:

The ghosts still clamor to be heard and the trial refuses to end and the sons refight their fathers’ battles and like a transfiguring scar, the events that made up the saga have grown ever more vivid. Many swear that they know why this is so, and they speak of Jews and injustice and the vengeful magistrate – Judge Lynch – who presided at the end. These arguments all have their merits, but they ignore the conflict that was there to begin with, the conflict between the future and the past that was dramatized so audaciously on April 26, 1913, the conflict that transformed murder into myth.