Surratt House Museum Leaf Discussion & Debate in the Case for Dr. Mudd

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Discussion and Debate
in the Case for Dr. Mudd

In the course of the legal proceedings to set aside the conspiracy conviction of Dr. Samuel A. Mudd, scholars of the Lincoln assassination have debated the merits of Dr. Richard Mudd's quest. Their observations, which do not necessarily represent the museum's perspective, are recorded here.

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Update on Efforts to Exonerate Dr. Mudd

Surratt House Museum Update
October 1997

The descendants of Dr. Samuel A. Mudd are continuing their efforts to have the government declare the doctor innocent of all wrongdoing. Representatives Steny Hoyer of Maryland and Thomas Ewing of Illinois have introduced a bill into the House of Representatives (H.R. 1885) which directs the Secretary of the Army to "...set aside the conviction of Dr. Samuel A. Mudd for aiding, abetting, and assisting the conspirators who assassinated President Lincoln."

In 1869, President Andrew Johnson granted a full and unconditional pardon to Dr. Mudd. Such a pardon pertains to both the crime as well as the guilt. However, despite numerous legal set-backs, the family has fought on to challenge the legality of the military court which tried the Lincoln conspirators.

Several authorities in the field have objected to this latest political maneuver and are urging the Subcommittee on Military Personnel, which has been assigned H.R. 1885, to consider all the facts in the Mudd case. They are providing evidence of Dr. Mudd's anti-Lincoln, pro-slavery, and pro-Confederate stance based on the doctor's own writings, as well as evidence linking Mudd to Booth's original scheme to capture Lincoln; a scheme in which Confederate operatives hoped to seize Lincoln and hold him hostage. They have also pointed out that Mudd did not report Booth's presence in his home to federal authorities upon learning from them of the assassin's deed. Instead, Mudd returned to his home and assisted Booth in his escape.

All parties concerned are hoping for a final, definitive, and objective analysis of the Mudd issue.

top Surratt House Museum
January 1997

Leave Matter of Mudd's Guilt or Innocence to Historians

James O. Hall
Letter to the Editor, The Maryland Independent
August 1, 1997

On July 9, The Maryland Independent published an article sympathetic to Dr. Samuel A. Mudd in the Lincoln assassination case. Possibly readers would be interested in a somewhat different view. There is another side to this story, although it is rarely told.

Mudd was convicted by a military commission in 1865 of aiding and abetting John Wilkes Booth in the conspiracy to assassinate President Abraham Lincoln. For many years, Mudd's grandson, Dr. Richard D. Mudd, had conducted a skillful political and public relations campaign to "clear his grandfather's name."

In June, Congressman Steny Hoyer responded to this public relations campaign by introducing H. R. 1885. This bill would order the Secretary of the Army to "set aside" Mudd's conviction on the grounds that it as not based on sufficient evidence.

Just how the evidence was lacking, Hoyer does not say. Obviously he has not taken time to study the trial transcript which is readily available in book form and in the National Archives. So the suspicion lingers that Hoyer is merely trolling for votes among the numerous Mudds, their kin and the "true-believers" in his congressional district.

Whatever his motive, Hoyer is seeking to legislate Mudd's innocence, a task the Congress is badly equipped to perform.

While serving a life sentence at Fort Jefferson, the island prison off the coast of Florida, Mudd treated victims of an outbreak of yellow fever. President Andrew Johnson recognized this service when he issued Mudd an unconditional pardon on Feb. 8, 1869.

Despite this pardon, Dr. Richard D. Mudd wants to go further; he wants somebody -- just about anybody -- to somehow rewrite history and "exonerate" his grandfather.

Petitions to this effect have twice been rejected by the Office of the Secretary of the Army, once under the Bush administration, and more recently during the Clinton administration.

The rejection decisions were cogent and well-reasoned. They are too long to be quoted here. Accordingly, they have been assembled as a package, along with supporting papers, and placed where they can be read and copied.

These locations are the Maryland Historical Society, Baltimore; the Maryland Hall of Records, Annapolis; the Charles County Public Library, LaPlata; the Charles County Community College, LaPlata; and the Surratt Society Library, Clinton. Of particular interest in this package is a letter dated June 4, 1992, written by historian Floyd Risvold, Minneapolis, to the Secretary of the Army; and an article by respected Lincoln scholar, Dr. Edward Steers, Berkeley Springs, W. Va.

The usual Mudd propaganda line, repeated over and over, and over and over again, is that Mudd was a kindly country physician, convicted by a vengeful government of aiding and abetting in the Lincoln assassination conspiracy only because he set the broken leg of Booth.

This is absolute nonsense. There was ample evidence to support conviction. Mudd's complicity with Booth is adequately covered in the assembled package of materials. But there are other aspects of the Mudd case that warrant a closer look.

Mudd's deeply held beliefs were revealed in a long and bitter letter of Jan. 13, 1862, sent to O. A. Brownson, a prominent lay Catholic scholar. In this letter, Mudd comes over as anti-Lincoln, pro-Confederate and pro-slavery. At one point in his ardent defense of slavery, Mudd wrote: "Christ, our Savior found slavery on his coming and yet he made to command against its practice." Mudd was furious with Brownson because he had published abolitionist sentiments in a Catholic magazine. A printed version of this letter is included in the package; the original is in the Brownson papers, Notre Dame University.

In the 1860s, the black population of Southern Maryland was nearly all slave. These people knew little of dates or geography, a great deal about neighborhood affairs and local citizens, and almost everything about the master and his family. Talk and actions often went on in front of them as if they were not there to hear and see. But the black servants were there watching, listening, remembering. Their oral communication grapevine spread news with surprising speed and accuracy.

With the coming of the Civil War and its inherent promise of freedom, the stored-up slave resentments against the system began to emerge with increasing frequency and force. With respect to Dr. Samuel A. Mudd, the prosecution tapped into resentment about his threats, his harsh treatment of some slaves, and his pro-Confederate actions and language.

On May 25, 1865, the judge advocate brought in seven former slaves to testify against Mudd in the Lincoln assassination conspiracy trial. Five of these were former slaves of Mudd; Mary Simms, Elzee Eglen, Melvina Washington, Milo Simms and Rachel Spenser. Silvester Eglen had been a slave of Mudd's father. William Marshall had not been a slave of the Mudds. However, Marshall's wife had been a slave of Benjamin Gardiner, a neighbor of Mudd.

A verbatim copy of the recorded testimony of these seven former slaves is included in the assembled information package. The essence of this testimony is a word picture of Dr. Samuel A. Mudd that erases much of the protective coloration painted by his apologists, including Hoyer.

The Mudd family has constantly sought to create the "kindly country physician" image for Dr. Samuel A. Mudd.

At times he is described in terms that make him appear almost saintly. As part of this image-making process, the U.S. Postal Service has been bombarded with requests to issue a commemorative stamp of Dr. Mudd. But what is kindly about threats to separate male slaves from their families for forced work in Richmond on Confederate fortifications? And certainly there was nothing kindly about Dr. Mudd shooting his slave, Elzee Eglen, or using the lash on his slave, Mary Simms, even after she became a free woman.

Perhaps it would be best for Hoyer to withdraw H. R. 1885 and leave the matter of Mudd's guilt or innocence to competent researchers and historians. They will have the last word anyway. ***

top James O. Hall
McLean, Virginia

Different Picture of Dr. Mudd

John E. McHale, Jr.
Letter to the Editor, The Maryland Independent
August 8, 1997

When I read James O. Hall's letter in your Aug. 1 issue dealing with Dr. Samuel A. Mudd, my first inclination was to simply ignore it, for it is the same old song Hall and the handful of his associates have been singing for several years now.

But I decided that wouldn't be fair to either Mudd or Congressman Steny Hoyer, who has been making a good faith effort to set the record straight after more than 130 years.

By way of background, I have spent more than 10 years studying President Abraham Lincoln's murder and the resulting military commission hearing. In 1985, Simon and Schuster published my "Dr. Samuel A. Mudd and the Lincoln Assassination." I am a retired FBI agent who supervised organized crime investigations at bureau headquarters for some 16 years, so I think I know a real conspiracy case when I see one.

Therefore, let me say right up front at no time, during its trial of 1865, did the government ever prove any criminal act on Mudd's part.

And, when Hall claims that proof of "Mudd's complicity with (John Wilkes) Booth is adequately covered" in a group of "packages" which he has apparently filed, he is not being completely forthright

The only so-called "proofs" consist of two statements, one issued 20 years after the fact, and one 30 years afterward, plus an ambiguous statement contained in George Atzerodt's lost confession... (text obliterated here)...and, while his case was still pending appeal, to one of his guards that he had recognized Booth while setting his broken leg.

The arguments against these four "proofs" is overwhelming, but, as Hall said, they are much too long to be quoted here.

In regards to Dr. Mudd's record as a slave owner, Hall elected to pick and choose his "facts" from the 1865 trial in order to convict him by innuendo when nothing else would suffice.

To begin with, George Washington and Thomas Jefferson were both slave owners. Does that make them criminals?

Moreover, six former slaves who worked for Mudd, after being freed, testified at his trial that "he treated me first rate," that he "always treated his servants well" and that "Dr. Mudd was kind to all of us," to list but some of their endorsements.

In addition, four of the six accused Mary Simms, the principal witness who claimed that Mudd abused his servants, as a person who was "never known to tell the truth," as "not a very great truth teller," as having "a bad name as a story teller," and as one who was laughed at by the other servants because "she told such lies they could not believe her."

One of these lies even led Hall to accuse Mudd of whipping the young woman, ignoring the testimony of another servant and former slave, Julia Ann Bloyce, that she never saw or heard of Simms being whipped, but she did know of one occasion when Mrs. Mudd hit...(text obliterated here)..."I don't believe it hurt her." (I wonder if this is in one of Hall's packages.)

Another story promulgated by the thoroughly discredited Simms and her brother, Sylvester Eglent, was that Mudd had threatened disobedient servants with being sent to Richmond to "build batteries" if they disobeyed him, and Hall appears to have swallowed this fable hook, line and sinker, or else he merely capitalized upon it to promote his cause.

In all honesty, however, I must admit that there is one occurrence in Mudd's life of which I doubt even he was proud.

As best can be determined, his quiet demeanor finally snapped under the "obstreperous" behavior of still a second brother, Elzee Eglent, and when the latter flagrantly defied Mudd on one occasion and started walking away, Mudd picked up a shotgun and fired some buckshot in Eglent's general direction to "scare" him. Instead, several pellets inadvertently struck Eglent in the leg, whereupon Mudd laid down his gun, administered first aid and gave the wounded man several days off to recuperate.

After his return from prison, Mudd resumed his practice of medicine, and several years ago my wife and I were told an interesting story by the late Wilson Moore, then patriarch of one of the largest and most distinguished African-American families in Prince George's County.

According to Moore, his father used to talk about one time when he was a young boy and Mudd had come from Charles County to treat...(text obliterated here)...While waiting for the medicine to take effect, Mudd sat down in the living room with the young boy and told him the story of Lincoln's assassination and how he himself had come to be sent to prison. Unfortunately, Moore didn't remember the details of his father's conversation after all those years, but I think the incident gives a decidedly different picture of Mudd than the one Hall painted.

No one has ever said that Mudd was saintly, or even "almost saintly," but he was a good family man, a devout Catholic and a citizen who was entitled to his day in court. Thanks to Hoyer, he may finally be getting that day.

top John E. McHale Jr.
Suitland, Maryland

The Doctor Mudd Debate Continues

Dr. Edward Steers, Jr.
Letter to the Editor, The Maryland Independent
August 15, 1997

My comments concern several statements made by John McHale in his letter (Maryland Independent, Aug. 8). McHale is not correct when he writes that the government did not prove "...any criminal act on (Dr. Samuel A.) Mudd's part." The government proved, and subsequently convicted Mudd of the specification that he conspired with John Wilkes Booth in Booth's conspiracy to capture Abraham Lincoln; a conspiracy which ultimately led to Lincoln's murder, and that he knowingly aided and abetted Booth in his effort to escape the federal authorities. There is no doubt among any reasonable student of the assassination that Mudd knew Booth when he came to his house in the early morning hours of April 15, 1865, and that Mudd learned of Lincoln's murder while Booth was still a "patient" of Mudd's. This proves aiding and abetting the murderer of President Lincoln.

In addition to the two statements which implicate Mudd in Booth's conspiracy and which McHale trivializes (statements of Samuel Cox, Jr., and Confederate agent Thomas Harbin), he overlooks two additional statements by Dr. Richard Stuart and William Bryant, another Confederate secret service agent, both of whom said that Mudd had sent Booth and Herold to Stuart's house after leaving Mudd's.

As to George Atzerodt's "one statement" in his "lost" confession, it is anything but ambiguous as claimed by McHale. Atzerodt stated, "...Dr. Mudd knew all about it, as Booth sent (as he told me) liquors and provisions for the trip with the President to Richmond, about two weeks before the murder, to Dr. Mudd's." What is ambiguous in this statement? Atzerodt's statement was not made under duress, but was made to Atzerodt's own brother-in-law who was on the staff of Provost Marshal James L. McPhail, both of whom had come to Atzerodt at his own request.

The "alleged admission" referred to by McHale was given in sworn affidavit by Capt. George W. Dutton, who was the officer in charge of escorting Mudd and his three co-conspirators to Fort Jefferson. The same admission which Samuel Cox, Jr., said Mudd confided to him in 1877.

The statements by these six individuals are dismissed by Mudd's defenders as being lies by known liars. It was Mudd, however, who did the lying. This is proven by the record, and by Mudd's own statements. When Mudd told authorities that he "...never saw either of the parties before, nor can I conceive who sent them to my house," he lied. He had met with Booth on at least three prior occasions. On two of these occasions he introduced two key conspirators to John Wilkes Booth who were important to Booth's capture plans: John H. Surratt Jr. and Thomas Harbin. Both of these men were Confederate agents and both agreed to join Booth's plot as a result of Mudd's introduction. And both men later fingered Mudd as the man who did the introductions.

When Mudd finally admitted (in writing) that Booth had been an overnight guest in his house one Sunday evening in November 1864 and purchased a horse from Mudd's nearest neighbor the next day, he lied. He lied to cover up a much more important meeting with Confederate agent Thomas Harbin in December of the same year. That is when Booth stayed the night with Mudd and purchased the horse. We know Mudd lied because he inadvertently let the truth slip in an affidavit he filed while in prison. Innocent men do not lie. Mudd lied, and he lied repeatedly.

In Mudd's treatment of his slaves and his concept of blacks, you need only read Mudd's own writings to see that he was a racist who described blacks as "...irresponsible beings of the unbleached humanity," and that he suffered the "...humiliation of being guarded by an ignorant, irresponsible and prejudiced negro soldiery."

McHale puts the best light on Mudd's shooting of one of his slaves. After all, the slave was "obstreperous." In his letter, McHale does not quote but paraphrases the testimony of Jeremiah T. Mudd concerning the shooting incident. This appears to soften the incident. McHale writes that Samuel Mudd "...fired some buckshot in Eglent's general direction..." He did not. He fired directly at him. Jeremiah Mudd said that Dr. Mudd "...had his gun with him, and he thought he would shoot him..."

Nowhere in the testimony does it state that "several pellets inadvertently struck Eglent in the leg..." The evidence from all witnesses including Samuel Mudd's own witnesses which included family members, was that Mudd shot his slave. Not in the "general direction," not "inadvertently striking Mr. Eglent with several pellets."

Mudd took his gun and intentionally shot Eglent in anger. Eglent was hit, suffered wounds and had to be treated. This was not some training exercise that Samuel Mudd was teaching his slave proper behavior. This is also not the image we have all been raised on of the kindly country doctor who was persecuted for nothing more than adhering to his Hippocratic oath.

Lastly, Dr. Samuel A. Mudd did have his day in court. Not once, but three times during his lifetime.

First before a military tribunal, second in federal district court before a federal judge and finally, before the U.S. Supreme Court through the appeal of his co-conspirators Samuel Arnold and Edman Spangler. Mudd lost before the first two courts.

The third court, the Supreme Court, ruled the appeal moot since Arnold and Spangler were pardoned on March 1, 1869, before the court could hand down a ruling. Mudd had been pardoned before the case was argued.

The majority of students of the assassination come down hard on the country doctor who escaped the gallows by his effective lying. They remain convinced that his name is still Mudd.

top Edward Steers, Jr.
Berkeley Springs, W. Va.

Dr. Mudd Sues the Government

James O. Hall
Update for the Surratt Courier
January, 1998

Dr. Richard D. Mudd of Saginaw, Michigan has filed suit in the United States District Court for the District of Columbia. The suit includes a petition in the Nature of Mandamus to Compel Performance of Duty, a petition for Special Relief in the Nature of an Extraordinary Writ of Mandamus, and a petition for Declaratory Judgement of Unconstitutionality.

Defendants in this case are Secretary of the Army Togo D. West, Jr., Assistant Secretary of the Army Sara E. Lister, former Secretary of the Army Michael P. W. Stone, and Acting Assistant Secretary William D. Clark. Also served with papers were Col. David Carey, Chief of Litigation for the Department of the Army; The Honorable Janet Reno, Attorney General of the United States; and the Office of the United States Attorney for the District of Columbia.

This is a civil action seeking to force the defendants to adopt the 1992 recommendations of the Army Board for the Correction of Military Records. As background information: The ABCMR is neither a legislative nor judiciary group. It is an advisory board, composed of civil servants, which may be called upon to review routine matters pertaining to military records. In 1991-92, it agreed to review the legalities of Dr. Samuel Mudd's trial by a military commission. A presentation was made by representatives of the Mudd family. No one was invited to speak to the history of the government's position in 1865. The review board subsequently agreed that Dr. Mudd should have been tried in a civil court, that the commission denied Dr. Mudd his due process rights, and that his conviction should be set aside. This recommendation was subsequently declined by Acting Assistant Secretary of the Army William D. Clark on July 22, 1992. It was then appealed to then-Secretary of the Army Michael P. W. Stone. No action was taken. On February 2, 1996, Assistant Secretary Lister, presumably acting on delegation from Secretary Togo West, declined to set aside the decision by Mr Clark.

This new suit claims that all of the Secretaries "capriciously abused their discretion in failing to approve and adopt the unanimous findings of the ABCMR and in transmitting to the Archives of the United States an order to remove the record of conviction from the files of Samuel A. Mudd, MD." Historians, no doubt, will continue to contend that said conviction was successfully removed from the files of Samuel A. Mudd when President Andrew Johnson granted the doctor a full and unconditional pardon.

top James O. Hall
for the Surratt Courier

Verdict in Dr. Mudd's Case Against the Army

James O. Hall
Update for Surratt House Museum, Surratt Courier
October, 1998

Dr. Samuel A. Mudd treated John Wilkes Booth's broken leg early in the morning after the assassination of Abraham Lincoln and provided a place for him to rest until later that same day. For this involvement, Mudd was sentenced to life imprisonment in Fort Jefferson in the Dry Tortugas. Four years later, he was pardoned and released by President Andrew Johnson.

Mudd's grandson, Dr. Richard Mudd of Saginaw, Michigan, sued the Army in an effort to have the conviction overturned. He contends that Mudd, a civilian, should not have been tried by a military commission. In 1992, the Army Board for Correction of Military Records (ABCMR) questioned the jurisdiction of the military tribunal which tried Mudd, and recommended that the conviction be set aside. The Army disagreed with the recommendation. Dr. Mudd appealed.

On October 29, 1998, Federal Judge Paul L. Friedman issued a complex opinion pdf icon  in Dr. Richard Mudd's civil suit against the Secretary of the Army. Judge Friedman considered three counts in the suit:

  1. The first count sought review, under the Administrative Procedure Act, of Assistant Secretary Lister's 1992 decision refusing to vacate Dr. Mudd's conviction.

  2. The second count sought a writ of mandamus pursuant to the All Writs Act, directing the Secretary of the Army to adopt the recommendation of the ABCMR to order the Archivist of the United States, who is the custodian of the Hunter Commission's report of conviction (the 1865 Conspiracy Trial), to correct the records to reflect that Dr. Mudd's conviction has been set aside.

  3. The third count sought a Declaratory Judgment that "Dr. Samuel A. Mudd, M. D., was wrongfully convicted on or about June 30, 1865, of conspiring to assassinate President Abraham Lincoln in violation of the Fifth Amendment to the United States Constitution."
Judge Friedman dismissed Counts 2 and 3 for cause, which he explains in the opinion. With respect to the first count, Judge Friedman found that the Secretary of the Army's decision to reject the unanimous recommendation of the ABCMR was arbitrary and capricious and unsupported by substantial evidence in the record. Accordingly he ordered the case sent back to the Secretary to respond to certain legal points raised at the ABCMR hearing on January 22, 1992. Thus the case is back before the Secretary for reconsideration.

Contrary to some media accounts, Judge Friedman's decision did not turn on the facts of the case nor on the guilt or innocence of Dr. Samuel A. Mudd. It has only instructed the Secretary of the Army to consider and respond to certain legal points.

top James O. Hall
for the Surratt Courier

Case of Dr. Samuel A. Mudd: A Mandamus Action

James O. Hall
Update for Surratt House Museum, Surratt Courier
January, 1998

Richard D. Mudd, M.D. v. Togo D. West, Jr., Secretary of the Army. In 1865 Dr. Samuel A. Mudd was convicted by a military commission of aiding/abetting John Wilkes Booth in the assassination of President Lincoln. He was sentenced to life in prison. President Andrew Johnson gave Dr. Mudd a full and absolute pardon on February 8, 1869. The Supreme Court has ruled in Ex parte Garland 1866 that such a pardon reaches both the punishment and the guilt.

In 1990 Dr. Samuel A. Mudd's grandson, Dr. Richard D. Mudd, filed a petition with the Army Board for Correction of Military Records to "correct" -- that is, reverse -- Dr. Samuel A. Mudd's conviction and expunge this conviction from the official records held in the National Archives. A hearing was held in the Pentagon on January 22, 1992, before the ABCMR. Only witnesses favorable to the Mudd position were allowed to testify. Subsequently the ABCMR recommended that the military commission lacked jurisdiction to try Dr. Mudd. The Secretary twice refused in written explanatory orders to adopt and carry out the ABCMR recommendation in this case.

Now Dr. Richard D. Mudd, under color of his family relationship, has filed suit against the Secretary of the Army in the Federal District court of Washington to compel the Secretary to adopt and carry out the ABCMR recommendations. The suit advances the novel legal theory that the Secretary has no choice but to agree with the position of the ABCMR, and that the Secretary's continued refusal to do so is arbitrary and capricious. Thus the suit is "...in the nature of mandamus to compel performance of duty."

To understand the background of this matter requires a review of the statue which authorized creation of the Army Board for Correction of Military Records (ABCMR), Title 10, Sec. 1552, together with the operating procedures set up pursuant to this statute, Army Regulations 15-185. The gut question to be answered is simple: Is the Secretary bound by the statute or the regulations to adopt and carry out a particular recommendation of the ABCMR? Put another way, is the ABCMR an autonomous agency within the Department of the Army, with power to act independent of the views of the Secretary?

The wording of the enabling statue, Title 10, Sec 1552, is in point. Paragraph (a)(1) reads in part:

"The Secretary of a military department may correct any military record of the Secretary's department when the Secretary considers it necessary to correct an error or remove an injustice...

This paragraph goes on to state that such corrections shall be made by the Secretary acting through boards of civilians set up in his department.

All this boils down to statutory authority for the Secretary to correct departmental records to fix errors or erase some injustice. The Secretary is not required by law to take any specific actions; what he decides to do is left to his discretion. To help him reach decisions, and for that purpose only, the statute provides for this board of civilians within his executive office.

Title 10, Sec. 1552, paragraph (a)(3) provides that the Secretary shall issue regulations, approved by the Secretary of Defense, for the purposes of the statute. Accordingly, Army Regulations 15-185 were published, effective April 1, 1997. These regulations created the Army Board for Correction of Military Records, set out the board's powers and operating procedures, and defined how the board's recommendations are to be treated by the Secretary in his official capacity.

It should be noted in AR 15-185, Sec. IV, paragraph 19(e)(1), that the Secretary delegated certain limited authority to the ABCMR. This delegation concerns primarily what might be called housekeeping problems such as leave, promotions, grades, awards, years of service, and the like. In any case where the ABCMR acts under this limited delegation from the Secretary, such action is deemed to be final.

In all other cases the proceedings of the ABCMR are to be forwarded to the Secretary, as provided in AR 15-185, Sec. VI, paragraph 20, who will then "...direct such action as he/she determines to be appropriate." In short, the Secretary has the discretionary power to adopt the ABCMR recommendation, adopt it in part, or deny it outright. Nowhere in the statue or the regulation is there any requirement that the Secretary adopt a particular ABCMR recommendation. It is clear throughout that the board is the Secretary's creature, having only the powers he delegated to it and none other. The Samuel A. Mudd case does not fall into any category of delegated powers.

Pursuant to AR 15-185 the Secretary has exercised his discretionary powers in the Mudd case and twice rejected an ABCMR recommendation for cause. The Secretary followed his own regulations with precision, and issued adequate and persuasive written explanations of his action in each instance.

Dr. Richard D. Mudd takes the novel legal position in his suit that the ABCMR is in effect operationally independent of the Secretary. And, where the Secretary refuses to carry out an ABCMR recommendation, a petition "...in the nature of mandamus" is a remedy which can be invoked in court to require the Secretary to conform to the Mudd version of what is right and proper. Anything other than the "correct" Mudd version must, according to the petition, be arbitrary and capricious.

Essentially, Dr. Richard D. Mudd has petitioned the court to issue a writ of mandamus to compel the Secretary to act when in fact the Secretary has already acted. It is just that Dr. Mudd does not like the way the Secretary has acted and he wants the court to order that changed to conform to his own views. In this, the petition completely ignores the fact that the law and the regulations in no way limit the Secretary's discretionary powers. The Secretary is required by the regulations to "...direct such action in each case as he/she determines to be appropriate." The Mudd petition would render these plain words meaningless.

This suit should not survive a motion to dismiss.

top James O. Hall
for the Surratt Courier

Judge Friedman's Ruling in the Case of Dr. Mudd


Dr. Edward Steers, Jr.
Article in the Surratt Courier
January 1999

On October 29, 1998, Judge Paul L. Friedman issued his ruling pdf icon in the civil suit brought by Richard D. Mudd, M.D., against the Secretary of the Army, Louis Caldera. The suit consists of three counts aimed at setting aside the original trial record of 1865 and declaring Dr. Samuel Mudd wrongfully convicted.

Judge Friedman dismissed Counts II and III and upheld Count I. His ruling [with regard to Count I] does not go to the innocence or guilt, only to faulty administrative procedure by the Secretary. Judge Friedman concluded that the Secretary of the Army did not consider two points introduced by the plaintiff.

I will only address point 1 in this article and leave point 2 to others [for point 2, see Note below]. Point 1. "Failure to Consider Dr. Mudd's Citizenship of a Non-Secessionist State," hence the military commission lacked jurisdiction to try Dr. Mudd as long as the civilian courts were open.

In addressing point 1, Judge Friedman relied on the expert testimony of Dr. Jan Horbaly which was presented at the ABCMR hearing in 1992. Judge Friedman wrote in his opinion:

The fundamental problem with [the Secretary's] decision lies in the fact that [he] never addressed the argument that Dr. Mudd was a citizen of the United States and a citizen of Maryland, a non-secessionist state, and the expert testimony of Dr. Horbaly that the Hunter Commission therefore could not exercise law of war jurisdiction over Dr. Mudd.(1)

The Commission would only have had law of war jurisdiction if there was a state of war and a non-citizen belligerent were charged with violating the accepted rules of war. (2)

If the civil courts are open and a citizen is charged with an offense as "an enemy of the nation," the United States Constitution provides the means by which that person should be tried: the citizen should be charged with treason in a civil court (trial by jury) rather than being tried by military commission.(1)

These conclusions of Judge Friedman are drawn from the testimony of Dr. Horbaly. Dr. Horbaly supported his conclusions, in part, by citing the Supreme Court case known as Ex Parte Quirin.

In Ex Parte Quirin, a case brought before the Supreme Court in 1942, eight German saboteurs were charged under the law of war as enemy belligerents and ordered tried by military commission. The defendants claimed that the military commission lacked jurisdiction to try them because the civil courts were open. One of the eight defendants (Herman Haupt) who challenged the military commission's jurisdiction was a citizen of the United States by virtue of the naturalization of his parents during his minority. Dr. Horbaly testified that the defendant Haupt was an American citizen and stated that the "Chief Justice determined in his opinion" that Haupt had "in a sense" forfeited his American citizenship and therefore forfeited his right to be tried in a civilian court.(2) Dr. Horbaly concluded that the rule of the Supreme Court in Ex Parte Quirin differed from the case of Dr. Mudd since Mudd was a citizen of Maryland, a non-secessionist state, and all of the defendants in Quirin were German nationals. Dr. Horbaly was mistaken. It was not the Chief Justice who challenged the citizenship of Haupt, it was the chief prosecutor, Attorney General Francis Biddle. Dr. Horbaly was also mistaken about the Supreme Court's ruling on the relevance of citizenship.

The Supreme Court ruled that the argument over Haupt's citizenship was irrelevant because citizenship does not make one immune from trial by a military commission. This is what the Supreme Court said:

Citizenship in the United States of an enemy belligerent does not relieve him from the consequences of belligerency which is unlawful because in violation of the law of war.

Citizens who associate themselves with the military army of an enemy government...are "enemy belligerents"...(3)

The Supreme Court Justices also addressed the question of whether or not the Constitution mandated a jury trial for citizens charged as belligerents as claimed by Dr. Horbaly:

The provisions of the Constitution regarding trial by jury do not preclude trial of citizen enemies by military commissions without a jury.(4)

The plaintiff's argument that Dr. Mudd should not have been tried by a military commission because he was a citizen is disproved by the above Supreme Court ruling in Ex Parte Quirin. The Supreme Court ruled that citizenship does not relieve an enemy belligerent from trial by military commission under the law of war. Nor does the constitutional provision of Due Process (trial by jury) preclude trying a citizen by military commission. These statements are especially important; neither citizenship nor the Due Process clause of the Constitution are applicable to enemy belligerents when charged under the law of war.

Both the plaintiff and the defendant agree that Ex Parte Quirin does apply in the current case. The difference in opinion between the two parties as to the meaning of the Justices' ruling, however, is in the accuracy of quoting from that rule. The Secretary of the Army has the opportunity to satisfy Judge Friedman's concerns over the relevancy of Dr. Mudd's citizenship by referring to the Supreme Court's ruling cited above.

Note: Point 2 in Judge Friedman's ruling is "Lack of Substantial Evidence in the Record." The judge objects to the lack of evidence supporting the Army's contention that Dr. Samuel Mudd could have had the jurisdictional question decided over a century ago and failed to raise it.

              
(1) Friedman, p. 7
(2) Testimony of Dr. Jan Horbaly before the ABCMR, p. 35, 11. 11-19.
(3) Ex Parte Quirin, 317 U.S. 1, p. 7. Hereafter referred to as Quirin.
(4) Quirin, p. 15.

top Dr. Edward Steers, Jr.
Surratt Courier

Final Verdict in Dr. Mudd's Case Against the Army

Excerpt for Surratt House Museum Website
March 2001
Federal Judge Paul L. Friedman has denied the latest appeal to set aside Dr. Samuel Mudd's conviction for aiding and abetting John Wilkes Booth's conspiracy to assassinate President Abraham Lincoln. Judge Friedman further stipulated that, "this Order and Judgment shall constitute a final judgment in this case."

In his decision, Judge Friedman states,

"...this Court...concludes that if Dr. Samuel Mudd was charged with a law of war violation, it was permissible for him to be tried before a military commission even though he was a United States and a Maryland citizen and the civilian courts were open at the time of his trial.... The final question then is whether Dr. Samuel Mudd was in fact charged with a violation of the 'law of war...'

Assistant Secretary Henry [of the Army, charged with reviewing the case]...found 'that the charges against Dr. Mudd (i.e., that he aided and abetted President Lincoln’s assassins) constituted a military offense rendering Dr. Mudd accountable for his conduct to military authorities and, therefore, subject to trial by the Hunter Commission, a properly constituted military commission' which President Johnson properly determined was 'the appropriate tribunal to hear the case.'

...In view of the foregoing analysis and this Court’s own reading of Milligan and Quirin, the Court cannot say that Secretary Henry’s decision was arbitrary, capricious or not in accordance with law. ...[B]ased on its analysis of Quirin and Milligan the Court must conclude that the decision to charge Dr. Mudd with a law of war violation cannot be disturbed."

top The full text of the decision pdf icon is available in pdf format.

Mudd Update

Excerpt from the Surratt Courier
April 2003

[Surratt Society] member Richard Willing, legal correspondent for USA Today, reports that the U.S. Supreme Court will not hear the appeal of the 138-year-old conviction of Dr. Samuel A. Mudd for complicity in the assassination of President Lincoln because the lawyer for the Mudd family missed the deadline for filing his case. The error [by the Mudds'] Washington D.C. attorney...snuffs out the last hope of Mudd's descendants to overturn the conviction. "It's heartbreaking to lose this way," said Thomas B. Mudd of Saginaw, Michigan, the doctor's great-grandson and plaintiff in the case. "We never held out great hope that the Supreme Court would do justice for Dr. Mudd. But to not even get the case in front of them, after all this time, that's just really hard to take."

The lawyer's error puts an unexpected and unsatisfying finish to the quest begun in the 1930s by the late Dr. Richard D. Mudd to have a court exonerate his grandfather. Even those who thought that Dr. Mudd played a larger role in the Lincoln assassination are not satisfied with the result. There will always be a little element of doubt, a little what-if. There will not be that final judicial closure.

[The lawyer] acknowledged missing a February deadline for filing a petition for certiorari, which requests the Supreme Court to hear the appeal of a lower court decision. [He] said that he could offer no explanation for his error. He had assured Thomas Mudd in late February that the appeal petition still could be filed in March. Later, Mudd said, [the lawyer] acknowledged that he just blew it. [He] had argued the Mudds' unsuccessful appeal in the U.S. Court of Appeals, the appeals court below the Supreme Court level, last September. A three-judge panel of that court ruled against the Mudds on November 8, 2002.

Getting the appeal before the Supreme Court was a long shot. The court receives about 8,000 appeal requests each year and usually accepts fewer than 90. At least four of the nine justices must agree that an appeal should be heard before it can be placed on the docket. One, Chief Justice William Rehnquist, was an unlikely vote. In All the Laws But One, a book he wrote in 1998, Rehnquist criticized the revival of the Mudd case as a misuse of judicial power.

The Mudds say that they will look elsewhere for redress perhaps to a Congressional resolution stating that Mudd was innocent. Thomas Mudd says that it is unlikely that the family will pursue professional sanctions against [the] lawyer... "It wouldn't revive the case, just our bad feelings about it," he said. "It's better to just let it go."

top Surratt Courier
April 2003
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