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Newly relevant case of Dr. Mudd is back in court

THE BALTIMORE SUN

WASHINGTON - Just blocks from Ford's Theater, where Abraham Lincoln was assassinated in 1865, members of the Mudd family came to a federal courthouse recently in one more round of a 137-year-old case in which they are trying to clear the family name.

Sitting in an appellate court were 10 of the 101 direct descendants of Samuel A. Mudd, the Maryland doctor who treated John Wilkes Booth, who had broken his left leg when he jumped down on the stage of Ford's Theater after shooting the president.

Booth and an accomplice fled on horseback to Mudd's house, where, in addition to setting Booth's leg, the doctor gave the two food, lodging and fresh horses, which allowed them to evade federal authorities for 11 more days.

Mudd's supporters maintain that he did not know Booth and learned only later of the assassination, and when he did, he alerted Union authorities. Nonetheless, he was arrested and tried before a military tribunal, which convicted him of aiding and abetting the assassins and sentenced him to life in prison.

The phrase "your name is mud" is often associated with the doctor, although it was in use before he became notorious. Still, historians say, it gained currency with his post-assassination prominence.

Family views

Some in the Mudd family maintain that Mudd was wrongly convicted and should not have been tried in a military tribunal in the first place. They say they still feel the sting of a sullied reputation. Their quest raises metaphysical questions about the fairness of guilt by association, particularly as it echoes down through the generations in what one Mudd descendant called "a geometric progression of pain."

Their goal in coming here to the U.S. Court of Appeals for the District of Columbia Circuit was to have the record of Mudd's military trial, which is in the National Archives, "corrected" to reflect what they say is his innocence.

Court arguments concerned their standing to seek such a correction and the intricacies of the statute that provides for such corrections. The court is expected to rule this fall.

But not all Mudds feel tainted. Roger Mudd, the longtime television journalist, said in a telephone interview from his home in Virginia that he had hardly suffered because of his family name. "I made a lot of money as a television newsman," he said.

Roger Mudd also said that he was not convinced of his ancestor's innocence. "It is hard to believe he did not know" that his patient was the assassin. He noted that several scholars believe that Samuel Mudd was central to the conspiracy to kill Lincoln even though popular sentiment appears to be with the Mudds.

"It is true," Roger Mudd said, "that through the years, when people realized we had a connection, nine out of 10 would say, 'He really got a raw deal.'"

The case also raises questions of medical ethics and a doctor's responsibilities to a criminal who needs medical treatment, a question rekindled four years ago when Sen. Bill Frist, a Tennessee Republican who is also a doctor, treated the gunman who killed two Capitol Hill police officers.

And it raises compelling questions for America after Sept. 11, where President Bush has revived the option of military tribunals for terrorist suspects but explicitly exempted American citizens.

In the Mudd case, the government is arguing the opposite - that American citizens can be tried in military tribunals. If the court sides with the government, the case could have implications for the treatment of Americans who are being held as "enemy combatants" and so far do not face the prospect of military tribunals.

Mudd argued at the time of his conviction that a military tribunal did not have jurisdiction over his case because he was a civilian and a U.S. citizen and that civilian courts were in session.

Mudd wanted to be tried by a jury of his peers, believing they would be more likely to acquit him than would a military tribunal.

Petition denied

In 1868, a judge denied Mudd's petition, saying that Lincoln was commander in chief and that his assassination was thus an act of war. Mudd appealed the case to the Supreme Court, but a few months later, President Andrew Johnson pardoned him, and his case was dismissed. But the family never felt the issue was resolved legally.

The technical issue discussed in court recently was whether Mudd's great-grandson, Thomas B. Mudd, a teacher, now 61, who picked up the baton of the family cause after his 101-year-old father died in May, has standing to challenge Samuel Mudd's tribunal record.

The Mudd family lawyer, Philip A. Gagner, argued that Samuel Mudd's conviction in the military tribunal has "a continuing impact on the Mudd family" and that the tribunal did not have jurisdiction in the case.

Thomas Mudd said outside of court that his grandfather, Samuel Mudd's son, died "a hopeless alcoholic" because of the trauma. Thomas himself said he grew up trying to hide his family's "dark secret," lest he be taunted by classmates. During basic training, he said, when his drill instructors learned of his family history, they assigned him extra KP duty and extra latrine duty.

But R. Craig Lawrence, an assistant U.S. attorney, argued for the government that Thomas Mudd did not have standing because the case occurred so long ago. Moreover, he said, for someone to have standing, the "injury" had to be to that individual and be direct and palpable. "Thomas' reputation is not on the line," Lawrence argued. "Any harm here is very remote, if there is any at all."

As Gagner, the Mudd family lawyer, responded haltingly, the chief judge, Harry T. Edwards, cracked: "If I were in your shoes, I'm not sure what I would argue either."

But Judge Judith T. Rogers, a member of the three-judge panel hearing the case, appeared more sympathetic to the Mudds, telling the government's lawyer, "If you were a relative, you might feel differently."

Turning to Congress

If the court rules that Thomas Mudd does not have standing, the family could try going to Congress, as they have in the past, to correct the record, a possibility provided for in a law passed after World War II. Eugene Fidell, a military lawyer in Washington, said that Congress has intervened recently to "correct" the records of some World War II veterans.

Fidell said he did not expect the court to rule on the actual merits of the case. "They won't address the merits where the constitutional requirements relating to standing have not been satisfied or where there's some other serious defect, like whether the record at issue is even subject to the record-corrections statute," he said.

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