Randolph, Virginia.-- A lawyer is the last person one should trust when it comes to historical judgments. Lawyers are by training truth trimmers; they omit evidence and testimony damaging to their case.
This clearly happened on Lincoln's birthday at the University of Richmond's T.C. Williams Law School when a three-judge moot (or mock) appeals court concluded that a Union army tribunal in 1865 unfairly convicted Dr. Samuel A. Mudd as one of eight conspirators in the assassination of President Abraham Lincoln.
The judgment was the latest in a long series of pleas, principally by descendants, that Dr. Mudd was the victim of post-Lincoln assassination hysteria.
Dr. Mudd's descendants have pressed this claim of a miscarriage of justice without challenge. The University of Richmond's mock court continued this pattern when it apparently failed to consider the testimony and evidence that led the military tribunal to convict the Maryland-born physician.
We are asked to believe Boston criminal defense attorney F. Lee Bailey's claim that all Mudd was guilty of was having known Lincoln's assassin, John Wilkes Booth, and of setting Booth's broken ankle at Mudd's Charles County, Maryland, farm on the morning after the April 14 Lincoln murder.
For 110 years after the Lincoln assassination, historians had not had access to views of the chief government witness who convicted the Lincoln conspirators. Then in 1975 Alfred A. Knopf published "A True History of the Assassination of Abraham Lincoln and of the Conspiracy of 1865," by Louis J. Weichmann. At 23 this Catholic college student chanced to be staying at the boarding house of Mary Surratt, who was subsequently hanged for her part in the plot which was, initially, to kidnap President Lincoln, not murder him.
Weichmann wrote his work over a 30-year period, and on his deathbed on June 2, 1902, he signed a statement that he told the truth at the great trial of 1865. It was not until 1972 that an aging niece of Weichmann's sold the unpublished manuscript to Floyd E. Risvold, a collector of historical documents who edited the work and arranged for its publication.
Risvold notes that Weichmann's history is the only account by a participant "who was intimately associated with the conspirators," and that he was subjected to the longest and most searching interrogation of any of the numerous military tribunal witnesses.
"Although every effort," Risvold wrote, "was made by the defense to confuse him and destroy his testimony, the attorneys succeeded only in correcting him on some dates. Because he appeared as a witness for the prosecution, he was the target of attempts at character assassination and he was persecuted by those who were trying to exonerate Mary Surratt and Dr. Mudd."
Weichmann testified that he met Booth, Mudd, and John Surratt (Mary's son) on December 23, 1864, at the National Hotel in Washington. He maintained that Booth talked to him about buying Mudd's farm and that the actor had visited Mudd's
property in November 1864 where he first met Mudd. It was at the two-hour meeting in December that Booth revealed his plans to kidnap Lincoln.
Weichmann later admitted that this meeting took place not in December but on January 15, 1865. But defense lawyers could not shake his testimony about the substance of the meeting.
"The meeting at the National Hotel," Weichmann wrote, "was evidently a conference looking to the execution of the Conspiracy. The testimony given by me in relation to it was deemed by the Commission as very important for many reasons. It established the fact of Booth's and Mudd's mutual acquaintance prior to the assassination."
Weichmann testified that Booth bought from Mudd several horses, one a bay blind in one eye and subsequently used by one of the conspirators, Lewis Payne, in Washington on the night the assassination. He also asserted that Mudd introduced Booth to John Surratt and it was by this introduction that his mother's boarding house became the safe meeting place for the conspirators.
After Booth had broken his ankle jumping from the presidential ++ box at Ford's Theater in Washington, he rode the 30 miles directly to Dr. Mudd's farm, the latter part of the way in the company of co-conspirator David Herold. The physician set Booth's broken ankle and cut off his boot, which was later found by Union troops in Mudd's second-floor bedroom.
Herold testified that the doctor had given Booth a razor and suggested he shave off his mustache to conceal his identity and that he provided instructions and a Negro slave to guide their escape south. Several of Mudd's slaves told the tribunal that Mudd had in 1864 hidden rebels in the woods near his farm, and that he had made several trips south on behalf of the Confederate cause.
When Lt. Alexander Lovett on April 18 questioned Mudd at his farm, he denied knowing Booth. He said that two men had come to his house the morning after the assassination, one with a broken leg. This man, he said, wore long whiskers and a shawl over his head obscuring his features.
At his trial Mudd was forced to admit he knew the assassin as early as the fall of 1864, but he insisted that he played no part in the murder of President Lincoln. Testimony showed that Mudd had known Booth and the other conspirators on an intimate, not a casual, basis.
When Mudd saw Weichmann and realized he was to be a witness for the prosecution, Mudd's reaction was nothing like that of an innocent man caught in the cobweb of circumstances. "Never did a man's face change its color more quickly than his," Weichmann related in his written history. "It became almost deathlike in its expression, and of a frightful pallor. No attempt at recognition was made, but he gave me a quick, sharp glance which satisfied me that he knew me."
Convicted as an accessory to the assassination on the testimony of Weichmann and others, Mudd received a life sentence at the infamous Florida fortress prison Dry Tortugas. While en route to the prison, Mudd confessed during a conversation on July 22, according to his military jailer, Capt. George W. Dutton, that all the trial testimony against him was true. Dutton states that Mudd had denied knowing Booth, "fearing that his own life and the lives of his family would be endangered thereby. He also confessed that he was with Booth on the evening referred to by Weichmann in his testimony."
Mudd served only four years of his sentence; he was pardoned by President Andrew Johnson in 1869 for his heroic role in fighting a yellow-fever epidemic at the fortress prison. In the 1930s, Hollywood based a feature film on Mudd's ordeal, giving life to the legend that the Maryland physician had been the victim of a miscarriage of military justice.
At least two individuals partial to Mudd have testified to the contrary.
In 1877, when Mudd was running for the Maryland state legislature, Samuel Cox Jr., another Democratic candidate, said that Mudd had told him during several conversations that it was true he had agreed to assist Booth in kidnapping Lincoln only to have second thoughts, even threatening to expose Booth.
But, consummate dramatic actor that Booth was, he pleaded "in the name of his mother not to do so," and Mudd relented.
"From statements made to me," Cox said, "I believe Mudd was aware of the intention to abduct President Lincoln, but am confident he knew nothing of the plan of assassination."
Mudd died on January 10, 1883. A few months later his attorney, Frederick Stone, was quoted in the New York Tribune that "Dr. Mudd's prevarications had almost placed him in the hands of the hangman."
If Mudd had suffered the fate of hanging, like four of the eight Lincoln conspirators, one might make the case that evidence against him did not warrant death.
But the evidence against him was sufficiently substantial to warrant the sentence he received. His post-trial admissions hardly justify the conclusion at the mock trial at the University of Richmond that the trial was unfair and that evidence against Mudd was thin.
One senses that this exercise was more of an innocent piece of professorial and university public relations than an earnest intellectual effort to shed new light on a critical event in our nation's history. Yet the mock retrial contributes to a dangerous trend in American society.
Ever since the 1963 assassination of President John F. Kennedy, radical lawyers who lose their cases in courtrooms -- particularly capital cases -- have been retrying them in the court of public opinion. The hidden agenda of these lawyers is not to end the death penalty or to overturn error; it is to indict the entire legal system as rotten, rigged and racist. The campaign has as its goal the inflammation of opinion against the legal system as a way of radically changing its adversarial nature to one of subjective politicization.
Similarly, the 25 years of relentless criticism of the Warren Commission findings by radical lawyers like Mark Lane has been not to uncover new evidence, but to sow the seeds of distrust in the political system.
The University of Richmond, in rendering its verdict in the Mudd case, has provided its uninformed students and the general public fresh reasons for them to believe that unfairness of the system runs deep in our history. Such canards eventually have ** dangerous consequences.
Jeffrey St. John, a historian, is the author of a trilogy on the creation, ratification and implementation of the U.S. Constitution.