AN APPEAL FOR MUDD Moot court rules in doctor's favor; family heartened


RICHMOND, Va. -- It is Feb. 12, 1867.

President Abraham Lincoln, who would have celebrated his 58th birthday today, was assassinated nearly two years ago. Dr. Samuel A. Mudd, a country doctor from Charles County in Maryland, is finally having his day in court.

That was the scene yesterday in a mock courtroom at the University of Richmond School of Law. Renowned legal sages, including the flamboyant defense attorney F. Lee Bailey, staged a moot trial to determine whether Dr. Mudd truly was guilty of conspiring to kill President Lincoln in 1865.

Marylanders are familiar with the story. Dr. Mudd, then 32, set the broken leg of the assassin, John Wilkes Booth, and was later charged as a participant in the conspiracy to murder the president. He was convicted by a military commission and sentenced to life in prison. The nine-member commission fell one vote short of sentencing him to death by hanging.

After spending four years at hard labor in a military prison, Dr. Mudd was pardoned by President Andrew Johnson. He returned to Charles County, but died 14 years later, a broken man at age 49.

Yesterday in Richmond, the capital of the Confederacy during the Civil War, a three-judge panel decided unanimously that Dr. Mudd should not have been tried by a military tribunal, but instead by a civilian court, and that Dr. Mudd's conviction should be set aside.

The decision was by no means binding. The trial was make-believe from beginning to end. But it gave hope to members of the Mudd family, who have fought for years to persuade the Army to clear the Mudd name.

Dr. Richard D. Mudd was particularly pleased. He is one of three grandchildren of Dr. Samuel Mudd who attended the mock trial. He is 92 and lives in Saginaw, Mich. He postponed open-heart surgery to be here.

"I know he was innocent," he says. "He was railroaded, and I never liked it. I want him to be exonerated.

"If I kick the bucket before he is, my six children are going to continue the battle, and then my 36 grandchildren are going to continue the battle, and then my 34 great-grandchildren are going to continue the battle."

President Johnson's pardon of his grandfather in 1869 means little to Dr. Richard Mudd.

"Pardon means you're guilty forever," he snarls.

His nearly lifelong efforts have prompted two presidents, Jimmy Carter and Ronald Reagan, to write him personal letters on White House stationery. Both men wrote that they believed Dr. Samuel Mudd was innocent, but that their presidential powers did not extend to expunging military records.

The legacy of Dr. Samuel Mudd is kept alive in Charles County by another of his grandchildren, Louise Mudd Arehart, the last child born and raised in the farmhouse where the doctor treated Booth. Mrs. Arehart turned her grandfather's farmhouse into a museum after, she says, his ghost instructed her to preserve the homestead. The museum contains Mudd family furnishings, including the couch where Dr. Mudd examined Mr. Booth's leg as well as a table and desk Dr. Mudd made in prison.

Even though she attended yesterday's trial, she is less interested than other family members in clearing her grandfather's military record. She says she's satisfied with the presidential pardon, and anything further comes too close to tinkering with history for her taste.

Dr. Richard Mudd, however, has hired lawyers to fight the military. Among them is Candida Ewing Steel, who lives in Severna Park and practices in Annapolis. She is the great-great-granddaughter of Thomas Ewing Jr., the lawyer who defended Dr. Mudd in 1865.

In addition to pursuing the family's case against the military, she defended the doctor yesterday along with Mr. Bailey, who accepted the invitation of the law school's dean to argue the case.

"Any lawyer in America who would turn down the Mudd case isn't worth his salt," said Mr. Bailey, who wore a flowered tie so bright it could have been an advertisement for a winter vacation in Jamaica.

Mr. Bailey and Mrs. Steel argued that Dr. Mudd, a civilian noncombatant during the Civil War, should have been tried by a civilian court -- if he had to be tried at all.

Also, they argued, even though Dr. Mudd had met Booth twice, he did not recognize him the night he treated his left leg, because Booth wore a disguise of fake whiskers. And, they said, there is no evidence that Dr. Mudd knew of any plot to kill President Lincoln.

Although the trial was staged, it felt real. The mock courtroom was filled with more than 200 people, and closed-circuit TV broadcast the action to three classrooms.

John Paul Jones, who teaches constitutional and military law at the university, organized the trial after learning last year that Dr. Mudd's descendants were trying to clear his military record. Assisted by eight law students, the professor established the ground rules: that the trial would proceed according to the military laws of the 1860s, that it would resemble as much as possible the appeal Dr. Mudd never got.

L Mr. Jones had to make one exception, and not a minor one: Ap

peals of military verdicts were not allowed until after World War II. Back in the 1860s, defendants in courts-martial were not even allowed to testify. They were considered incompetent.

Mrs. Steel said she hoped the decision would influence the Army, which is considering the case.

She was one of three lawyers who tried in January 1992 to persuade the Army's Board for Correction of Military Records, a five-member civilian panel, to declare Dr. Samuel Mudd innocent.

The panel issued a unanimous recommendation in July last year that Dr. Mudd's conviction should be overturned, but the then acting assistant secretary of the Army, William D. Clark, denied the recommendation. He wrote that the board's business was not to settle historical disputes.

Mrs. Steel has appealed Mr. Clark's ruling. She says the Army has notified her it is reconsidering the denial.

Yesterday's victory, even though in a make-believe trial, was nice. For this day at least, the good doctor's name was no longer mud.

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