A Legal Look at a Strange Case that Altered American History

Daily Journal — Thomas D. Penfield

Because of the increasing threat of terrorism, the Supreme Court is revisiting Civil War and WWII era cases.

This renewed interest in historical cases will surely resurrect the saga of Dr. Samuel Mudd. While most every American knows that John Wilkes Booth shot Abraham Lincoln as he watched a play on Good Friday, April 14, 1865, what is not as well known is what happened after Lincoln was shot. That remarkable – and lengthy – aftermath is recounted in [“Law Makers, Law Breakers and Uncommon Trials,”] by Robert and Marilyn Aitken, an intriguing book featuring 25 non-fiction stories about people whose actions helped form our legal system and our world.

Most historians know that Booth’s original plan was to kidnap Lincoln and exchange him for Confederate prisoners. But that scheme changed shortly before the shooting. Posing as a real estate investor – while in actuality picking out an escape route – Booth had visited Dr. Samuel Mudd’s farm, about 20 miles southeast of DC. Mudd was also a slave owner and a Confederate sympathizer. After the initial visit, Mudd met with Booth twice more.

Booth shot Lincoln and then broke his leg as he jumped from the balcony to the stage to escape. At 4:00 a.m., he and accomplice David Herold arrived at Mudd’s farmhouse. Awakened, Mudd cleaned and set the leg and had crutches built by his handyman. The two men slept at Mudd’s home and then departed.

In the days that followed the assassination, law officials scoured the country for co-conspirators. Was Mudd “a simple country doctor” who provided medical attention for a stranger as he claimed? Or was he a co-conspirator, whose name became synonymous with the widespread appellation, “His name is mud?” (While Samuel Mudd is often thought to be the origin of this phrase, its use was actually first reported in 1823.)

Within days, Mudd’s status changed from witness to suspect. Fueling suspicion, he delayed in reporting Booth’s early morning medical visit and gave inconsistent stories about his contacts with Booth in town, which he maintained were coincidences. Eventually, Mudd was arrested and tried with seven others, including Mary Surratt, owner of a boarding house where weapons were stored for Confederates. The charges: conspiracy to kill not just Lincoln, but also Vice President Andrew Johnson and Secretary of State William H. Seward, and lying in wait to kill both Johnson and Ulysses S. Grant.

Secretary of War Edwin Stanton was determined to aggressively pursue the responsible parties. Breaking with precedent and at Stanton’s insistence, the defendants were tried before a military commission so the government could control the proceedings, even though civil courts were available and there was scant evidence the Confederacy was behind what would be a military crime: killing the commander in chief. It was a speedy trial.

On May 13, 1865, the trial began with 366 witnesses testifying. According to Aitken, “as in most civilian courts at that time, criminal defendants were not permitted to testify on their own behalf.” Just over a month later, on June 29, Mudd was convicted, escaping death by one vote. Not so lucky was Surratt, who became the first woman to be executed by the federal government. (The story of Mary Surratt will soon be told in a new motion picture directed by Robert Redford, http://www.conspiratorthemovie.com).

Mudd appealed, but began serving a life sentence in Fort Jefferson, on an island 70 miles west of Key West, Fla. Two months after his arrival, control of the prison was given to the 82nd U.S. Colored Infantry. Fearful of his treatment as a former slave owner, Mudd attempted to escape. Caught and thrown in the dungeon, he was released into the general prison population after three months.

In the fall of 1867, a yellow fever outbreak decimated the prison and the prison doctor died. Mudd agreed to take over the task, despite having yellow fever himself.  The soldiers subsequently wrote President Johnson, requesting a pardon for Mudd, saying, “He inspired the hopeless with courage and by his constant presence in the midst of danger and infection.”

On Feb. 12, 1869, Mudd was given an unconditional pardon for his heroic medical work by President Johnson, which mooted his appeal. He returned to Maryland, had several children, and became active in politics until his death in 1883 at age 49.

But the battle to clear his name had only begun in earnest and the issue of trying “enemy combatants” before military commissions is as fresh as today’s headlines.

Years later, Dr. Richard Mudd picked up the cause and began his enduring efforts – ultimately petitioning a series of presidents – to clear his grandfather’s name. In [Ex parte Milligan], 71 U.S. 2, (1866) the U.S. Supreme Court ruled the suspension of habeas corpus unconstitutional when civilian courts are still operating. In essence, the Court ruled that military tribunals could not try civilians in areas where civil courts were open, even during times of war, providing a legal basis for Mudd’s challenge.

Because of Richard Mudd’s efforts, in 1959, President Dwight D. Eisenhower had a plaque installed at Fort Jefferson, memorializing Mudd’s lifesaving efforts. Jimmy Carter also wrote that he was sympathetic, but the exclusive power of the president was the pardon, which had already been issued. Ronald Reagan wrote, “I came to believe as you do that Dr. Samuel Mudd was indeed innocent of any wrongdoing.”

In 1992, Reps. Steny Hoyer and Thomas Ewing introduced HB1885 to overturn the conviction, but it died in committee. That same year, Richard Mudd petitioned the Army Board for Correction of Military Records, which in turn recommended that the conviction be overturned on the basis that Mudd should have been tried by a civilian court, citing [Ex parte Milligan]. But the Assistant Secretary of the Army refused to accept the recommendation, saying the Army Board had no business settling historical disputes. Richard Mudd then petitioned the Secretary of the Army, who refused to reverse the decision, which led to a petition for mandamus in U.S. District Court. The District Court judge refused to reverse, but found that the Secretary had acted in an “arbitrary and capricious” manner and asked the Secretary to reconsider.

On March 6, 2000, the Secretary of the Army refused, saying the military commission had jurisdiction, citing [Ex parte Quirin] 317 U.S. 1 (1942). [Enemy belligerents who engage in hostilities in the United States, even if American citizens, can be tried by military commissions.] However, a year later, the court ruled the Army had acted properly, and [Ex Parte Milligan] did not apply to Mudd’s case.

In 2002, Richard Mudd died at age 101 – but his son, Thomas D, Mudd, persevered. He filed a petition in the U.S. Court of Appeals, but it ruled that there was no standing because he was not in the military.

While the last legal battle ended in 2003 when the U.S. Supreme Court refused the case – stating that the deadline for filing a petition for writ of certiorari had passed – social media continues to fight for the saga of Samuel Mudd. Supporters launched a Facebook page (www.facebook.com/pages/Free-Dr-Mudd/110856845612524), and there is also a museum that chronicles his story.

Yet have the legal challenges really ended? The Supreme Court will continue to examine these cases  due to issues arising from terrorist threats, particularly in light of the Guantanamo Bay prison camp cases. In fact, President Barack Obama just announced that trials before military tribunals will resume for detainees at Guantanamo.

With this in mind, it would not be surprising to see more of Samuel Mudd’s descendants emerge to continue the fight to clear the “mud” off of their notorious forebear’s name.

Thomas D. Penfield is a partner at San Diego-based Casey Gerry Schenk Francavilla Blatt & Penfield LLP.