Apr/May 2001 Miscellaneous

The Military Records of Dr. Samuel Mudd

by Eric Longley

"Booth's Doctor Stands Convicted," read the headline in the April 5 Washington Post.  That's Booth, as in John Wilkes Booth, the murderer of Abraham Lincoln. Dr. Samuel Mudd, a Maryland physician, had been convicted in 1865 for being linked to Booth's assassination plot, most famously by giving refuge and medical assistance to Booth, who with an accomplice was fleeing from justice after doing the murder. On March 14 of this year, almost 136 years after Mudd's conviction, Judge Paul Friedman, of the U. S. District Court for the District of Columbia, upheld Mudd's conviction by a military tribunal, and affirmed the power of the federal government to hold military trials for civilians who had been accused of violating the laws of war during the Great Rebellion (as Northerners referred to the events of 1861-1865). John McHale, a spokesman for Samuel Mudd's family (into which he married) told the Post  that the Mudd family would appeal Judge Friedman's decision. McHale was quoted as follows: "We will appeal, that's for sure. We will take it all the way to the Supreme Court if we have the money."

One often hears comments about the slowness of American justice, but even by American standards the Samuel Mudd case seems to have been somewhat prolonged. The case started in 1865 and it's still going on. The longevity of the case can attributed primarily to a descendant of Samuel Mudd.

Samuel Mudd's grandson Richard-who turned 100 this January-believes that his grandfather's conviction was unjust. Richard Mudd, who is a doctor just like Samuel was, has for years been seeking  to obtain what he sees as justice in the case. What's going on? To answer that question, we must go back to Good Friday, 1865, when President Abraham Lincoln, leader of the soon-to-be victorious North in the Civil War, was attending a play called "Our American Cousin" at Ford's Theater in Washington, D. C. An actor from a distinguished family, John Wilkes Booth, was also at the theater. He was not appearing in the play, however. He was to be the lead character in an entirely different drama.

While Lincoln was watching the play from his box at the theater, Booth came up from behind and fired shots at the Commander-in-Chief. Booth jumped onto the stage, injuring his leg in the process, and fled from the theater.

At about the same time, Lewis Powell (or Paine), a co-conspirator of Booth in an audacious murder plot aimed at Northern leaders, tried unsuccessfully to kill Secretary of State Seward.  Another conspirator, George Atzerodt, was supposed to kill Vice-President Andrew Johnson, but Atzerodt apparently lost his nerve.

Eluding federal authorities, Booth left Washington, D. C. and, accompanied by fellow conspirator David Herold, came to the Maryland farm of Dr. Samuel Mudd.  Mudd was a Confederate sympathizer who assisted Confederates in his corner of Maryland; however, he never joined the Confederate Army.  Mudd had previously met Booth, and the evidence indicates that Mudd, Booth and others had joined together in a seditious conspiracy to kidnap President Lincoln.  Apparently, however, Mudd didn't know that, at the last minute, Booth and the other conspirators had changed the kidnapping plot into a murder plot against Lincoln and others.  Booth and Herold stayed at Mudd's house while the doctor set Booth's injured leg.  Then Mudd sent Booth and Herold on their way.

Booth and Herold continued their flight, reaching a Virginia farm.  There, federal troops caught up with them.  Booth was shot dead and Herold was captured.  Andrew Johnson, who had survived the murder plot, was now President.  He issued a proclamation on May 1 creating a commission of military officers (known as the Hunter Commission) to try those implicated in Lincoln's assassination.  Eight people were arrested and brought before the Hunter Commission for trial.  Mudd was among those accused of being an accessory to the murder by helping Booth and Herold escape.  Mudd claimed (implausibly) that he had not recognized Booth when the latter arrived at the Mudd farm after the assassination.

All eight of the accused were found guilty by the Hunter Commission.  Four of the convicted conspirators were sentenced to death and were promptly hanged.  The Commission voted 5-4 to sentence Mudd to death, but since six votes were required to impose the death sentence, Mudd's life was spared and the doctor received a sentence of life imprisonment.  Two other convicted conspirators got life sentences, and another got six years in prison.  Mudd and the other three surviving conspirators were sent to federal prison in the Dry Tortugas, Florida, from which  Mudd unsuccessfully tried to escape.  During a yellow fever outbreak at the prison, however, Mudd courageously put his medical skills to use in helping both guards and prisoners.

Petitions for clemency on Mudd's behalf were sent to President Johnson.  In 1868, Mudd and his two fellow-prisoners (the fourth had died from the yellow fever) petitioned federal District Judge Thomas Jefferson Boynton for a writ of habeas corpus and release from prison.  The prisoners claimed that the Hunter Commission lacked jurisdiction to try them, and that a civilian jury should have heard the case.  Judge Boynton ruled that Mudd and the others had been properly tried by a military commission for a military offense-namely, the assassination of the Commander-in-Chief (Lincoln) in time of war, within a "fortified city" (Washington, D. C.).  Judge Boynton rejected the petition.

In 1869, while an appeal of Judge Boynton's ruling was pending in the U. S. Supreme Court, lame-duck President Johnson pardoned Mudd and his two co-conspirators.  In the pardon proclamation relating to Mudd, President Johnson cited Mudd's work during the yellow fever epidemic.  In addition, Johnson's proclamation cast doubt on Mudd's guilt, or at least on the degree of  his guilt.  For instance, the proclamation referred to the opinion of doctors who thought that treating Booth's injured leg was simply the performance of Mudd's medical duty.  Mudd went home to Maryland, where he died in 1883.

Mudd's cause would probably have died with him had not his grandson, Dr. Richard Mudd, embarked on a lifelong crusade to clear Samuel Mudd's name.  Richard Mudd unsuccessfully tried to get Presidents Carter and Reagan to set aside Samuel's conviction, but both Presidents regretfully replied that there was nothing they could do in addition to Andrew Johnson's full and unconditional pardon.

In 1990, Richard Mudd appealed to the Army Board for Correction of Military Records (ABCMR), a civilian body responsible for making recommendations to the Secretary of the Army regarding alleged errors or injustices contained in military records.  On behalf of his grandfather, Richard Mudd wanted Samuel Mudd's "records"-ie, the record of his military trial, now at the National Archives-to be "corrected" to reflect the alleged innocence of Samuel Mudd and the alleged illegality of the tribunal which tried him.

The law pertaining to the correction of military records was not passed with Samuel Mudd in mind.  Instead, the law was passed by Congress in response to a flood of requests from military personnel who claimed that their military records were inaccurate or misleading and who wanted the records changed.  Instead of passing reams of private bills dealing with individual cases, Congress directed the heads of the military departments (the Secretaries of the Army, Navy and Air Force, and the Secretary of Transportation in his capacity as head of the Coast Guard) to set up civilian advisory boards to handle requests for changing military records.  The ABCMR was the advisory board for the Army.  The respective Secretaries consider advice from the civilian advisory boards, but the final decision rests with the Secretaries. 

Congress wanted to prevent this records-correction procedure from being used by soldiers to challenge the verdicts of military courts-martial, ie, military trials of American soldiers.  Therefore, court-martial records can only be corrected to reflect action by reviewing authorities (eg, the Court of Military Appeals) or Presidential acts of clemency.  Fortunately or unfortunately, as the case may be, these limitations do not apply to the records of military commissions, which are tribunals (such as the Hunter Commission) for the trial of enemy soldiers and civilians of various stripes.

There is a broader discretion when it comes to correcting the records of military commissions, as we shall see.

Normally, petitions to the ABCMR must be made within three years after the alleged error in the records is discovered.  However, the ABCMR has the power to disregard this time limit when necessary "in the interest of justice," and such an exception was made when the Board decided the Mudd case in January 1992.  The ABCMR refused to decide on the guilt or innocence of Samuel Mudd, but it did decide that Samuel Mudd's trial by a military tribunal violated his right to a trial by jury.  The Board invoked an 1866 decision by the U. S. Supreme Court-ex Parte Milligan.  Mr. Milligan, a civilian who was a citizen of the non-Confederate state of Indiana, had been sentenced to death by a military commission for pro-Confederate plotting.  The Supreme Court held that Milligan was entitled to a jury trial in a civilian court.  A military-law expert who testified on Richard Mudd's behalf argued that Samuel Mudd had been improperly subjected to military jurisdiction.  The ABCMR therefore recommended in 1992 that the Secretary of the Army set aside Samuel Mudd's conviction.

On February 2, 1996, Assistant Secretary of the Army Sara Lister, on behalf of Army Secretary Louis Caldera, rejected the 1992 recommendation of the ABCMR.  Lister declared, "[e]ven if one could argue with hindsight that [the] jurisdiction [of the Hunter Commission] was improper, the appropriate time to make that challenge was 130 years ago within the confines of our judicial system.  This was attempted by Dr. Mudd and he lost.  His appeal of Judge Boynton's decision to the U.S. Supreme Court was not heard because of the pardon.  At that time, he decided not to judicially challenge the jurisdiction again.  For the sake of the law and history, his descendants must live with the ramifications of his decision."

Richard Mudd then sued the Army in the U. S. District Court for the District of Columbia.  In 1998, district judge Paul Friedman ruled that Assistant Secretary Lister had made two errors in reviewing the Mudd case.

First, Lister had said that Samuel Mudd had failed to challenge his conviction in court after he had been pardoned.  Judge Friedman, however, said that Mudd could not have filed such a challenge.  Mudd's pardon had ended his Supreme Court appeal of Judge Boynton's decision.  Legally, the Supreme Court was the end of the line, reasoned Friedman-Samuel Mudd couldn't have filed any further judicial challenges, and there was not yet a law for the correction of military records (If the Hunter Commission was still sitting, Mudd could have asked the Commisssion to reverse its verdict, but the Hunter Commission had "ceased to exist" after the assassination trial).  Judge Friedman also faulted Assistant Secretary Lister for ignoring one of Richard Mudd's key arguments - that Samuel Mudd had been a citizen of Maryland, a "non-secessionist state."  Friedman ordered the Army to reconsider its 1996 rejection of Richard Mudd's petition.

Judge Friedman's decision ignored an important legal principle known as collateral estoppel.  This is a fancy way of saying that, once you lose a case in court, and you've used up your appeals, neither you nor your descendants can keep filing challenge after challenge to the court's decision.  Once you lose in one court, you can't go to another court (or other authority) and make the same claims again.  But Judge Friedman was allowing Richard Mudd to do this very thing.  Samuel Mudd, in his claim to Judge Boynton, had challenged the right of the Hunter Commission to try him.  Judge Boynton ruled against Mudd.  I will argue below that Judge Boynton was wrong on a key point, but right or wrong, the only appeal from Judge Boynton's decision was to the Supreme Court, and Samuel Mudd's pardon put an end to that appeal.  Now, over a century later, thanks to the decision of Judge Friedman, the Department of the Army was supposed to reconsider Judge Boynton's decision.

Judge Friedman's 1998 ruling appears to have been accepted by the Army. This means that, under the doctrine of collateral estoppel itself, the Army would thereafter be prevented from raising the collateral estoppel issue. Instead of dismissing Richard Mudd's appeal on the grounds that Samuel Mudd's case had already been decided, the Army had to consider the merits of the issue: Had Samuel Mudd received his legal rights when he was tried by the Hunter Commission?

The Army, albeit slowly, undertook the task Judge Friedman had assigned to it.  On March 6, 2000, Assistant Secretary of the Army Patrick T. Henry wrote to Richard Mudd's lawyer to say that the Army had rejected Mudd's petition yet again.  Army Secretary Caldera approved of Henry's decision.  Henry's letter said that Samuel Mudd had been "tried for violations of the laws and customs of war"- ie, abetting the assassination of President Lincoln - and that Washington, D. C., where the assassination took place, "served as the nation's military headquarters and was a fortified city...under a form of martial law." Samuel Mudd's trial, concluded Henry, had been lawful.

Assistant Secretary Henry relied on a 1942 decision of the U. S. Supreme Court known as the Quirin decision.  In this case, the federal government had captured eight German soldiers (dressed in civilian disguise) who had been landed by submarine in Long Island and Florida with instructions to commit sabotage against United States facilities.  President Franklin Roosevelt, as authorized by Congressional legislation, convened a military commission to try the alleged saboteurs.  The alleged saboteurs demanded a jury trial in a civilian court, arguing that the Constitutional guarantees of trial by jury applied to them.  The Supreme Court ruled against the alleged saboteurs (six of the defendants were executed; the other two were ultimately sent back to Germany).

The Supreme Court ruled in the Quirin case that Congress could authorize the President to set up military tribunals to try "unlawful combatants" accused of violating the laws of war.  One of the alleged saboteurs claimed to be a citizen of the United States, not Germany, but the Court declared that citizenship was irrelevant.  Since, under the Quirin decision, a defendant's U. S. citizenship doesn't affect the jurisdiction of a military commission, Henry concluded that "Dr. Mudd's citizenship in the state of Maryland is not dispositive of the issue" of the Hunter Commission's jurisdiction.

The Court in the Quirin case did not say that the President could authorize military trials without the consent of Congress, or in violation of Congressional statutes.  As acknowledged by Secretary Henry, the Quirin case is based on the power of the President, "acting in concert" with Congress, to set up military commissions.  Henry asserted that "[t]he Supreme Court . . . traced the authority of the [military] commission [in the Quirin case] back to the plenary authority of Congress" under its war powers.  Henry concluded further that "[t]he Hunter Commission was similarly constituted."  That is, the Hunter Commission was set up with Congressional approval.  Henry did not explain how the Hunter Commission had been authorized by Congress.

The Mudd family went back to Judge Friedman. Friedman had reopened the case in 1998; now the Mudd family wanted Friedman to reverse the Army's decision yet again. On March 14, as I mentioned above, Friedman ruled against the Mudd family. Based on the *Quirin* precedent, Judge Friedman decided that the Army could hold a military trial (without a jury) for someone who was accused of violating the laws of war, even if the defendant was a U. S. citizen and a citizen of Maryland (as Mudd was), and even if he was not acting for the Confederacy (federal authorities had suspected Confederate complicity in the Lincoln assassination, but their charge has never been proven). Thus, said Friedman, the Army during the Civil War could try civilians for military offenses, and for legal purposes, the Civil War had not ended until a Presidential proclamation of 1866 had declared it at an end. The only remaining issue was whether Samuel Mudd's alleged crimes were military offenses.

The Army's had said yes to this question, and Judge Friedman thought the Army's decision was not "arbitrary, capricious or [in violation of]...law [and therefore]...the decision to charge Dr. Mudd with a law of war violation cannot be disturbed" by a U. S. court.

There is one curious omission in the decison of assistant Secretary Henry and the decision by Judge Friedman upholding Henry's decision. The Quirin  precedent allowed the President, with the approval of Congress, to set up military commissions to try alleged violators of the law of war. Henry had simply assumed without explanation that President Johnson had Congressional authority to establish the Hunter Commission. Judge Friedman did not even address the issue, referring only to the Constitutional right to a jury trial and the alleged fact that this Constitutional right did not apply to Samuel Mudd.

A brief examination shows that, far from authorizing military tribunals such as the Hunter Commission, the Civil War Congress, in 1863, had provided for civilian trials, not military trials, in the case of suspected disloyalists such as Samuel Mudd.  Congress did this in a law entitled "An Act Relating to Habeas Corpus, and Regulating Judicial Proceedings in Certain Cases," which is sometimes called the Habeas Corpus Act.  This law permitted the President, "during the present rebellion," to suspend the writ of habeas corpus.

In practical effect, this meant that people who were imprisoned under Presidential authority for alleged pro-Confederate activities could not be released by the courts except in specific circumstances described in the Habeas Corpus Act.  The Act required the Secretaries of State and War to compile a list of all persons who were detained by order of the President "otherwise than as prisoners of war," provided that such persons were citizens of the non-Confederate states, i. e., states where the federal courts had not been displaced by the war.

This list would be given to the federal courts of the districts that had jurisdiction over the prisoners.  If a federal grand jury met and adjourned without indicting a prisoner within its jurisdiction whose name was on the list, then that person was entitled to have the court release him upon taking an oath of allegiance to the U. S. and an oath renouncing the Confederacy.  The detainee's release could be unconditional, or the detainee could be released on bond and required to meet periodically with the court so that the court could make sure the released person was behaving properly.

In spite of the law, the Lincoln and Johnson administrations do not seem to have issued a list of detainees, although the military, on the President's orders, did arrest numerous suspected Confederate sympathizers in the non-Confederate states.  Even in the absence of a list of detainees, the Habeas Corpus Act allowed a prisoner arrested by order of the President to petition a court for release.  Upon proof that he was a citizen of a non-Confederate state, that he was not a prisoner of war, and that the grand jury had met without indicting him, the prisoner was entitled to release (conditional or unconditional) upon taking the required oaths.

In the 1866 Milligan case in the Supreme Court, Chief Justice Chase, speaking for four of the nine Justices, said that the provisions of the Habeas Corpus Act "obviously contemplate no other trial or sentence than that of a civil court," and this would of course rule out trial by military commission.  The other five justices in the Milligan  case were somewhat less specific on this point, basing their legal reasoning on the Constitutional right to a jury trial.  However, the opinion of the five majority justices strongly indicated that they agreed with Chief Justice Chase's interpretation of the Habeas Corpus Act.  Chief Justice Chase also declared, without provoking any explicit disagreement from the majority justices, that "[t]he constitutionality of [the Habeas Corpus] act has not been questioned and is not doubted."  Neither can it be seriously doubted that the Act applied to Samuel Mudd:

* Mudd was a citizen of Maryland, a non-Confederate state (although Maryland's loyalty to the Union was probably based on the presence of federal troops, not on patriotic sentiment).
  * Mudd was imprisoned under Presidential authority, ie, Andrew Johnson's May 1 proclamation ordering the alleged conspirators to be tried by military commission. 
* Mudd was not held as a prisoner of war: Both the Supreme Court's Milligan opinion and uniform practice during the Civil War indicate that people who, like Mudd, were accused of violating the law of war could not be considered prisoners of war.  The term "prisoners of war" refers only to lawful combatants-eg, Confederate soldiers captured in battle, and not to combatants who are accused of fighting unfairly, i. e., spies and assassins. Mudd, of course, was arrested precisely because of his alleged complicity in the Lincoln assassination.
* Mudd was not indicted by a grand jury.

In short, Mudd was entitled to release upon taking the required oaths.  If he had been released from military custody, Mudd could of course have been rearrested by civilian authorities and given a jury trial.  Instead of this, Mudd was given a life sentence by a military commission.  This was a plain violation of the Habeas Corpus Act.  Neither District Judge Boynton in 1868 nor Assistant Secretary Henry in 2000 nor Judge Friedman last month made any attempt to explain why the Habeas Corpus Act was not applicable to Samuel Mudd.

In 1867, Congress had passed a law purporting to retroactively legalize all Presidential decrees establishing military commissions during the Civil War era, including Andrew Johnson's proclamation creating the Hunter Commission.  However, by trying to legalize retroactively a criminal trial which was illegal at the time it was held, Congress was passing an unconstitutional ex post facto law.  Understandably, neither Judge Boynton nor Assistant Secretary Henry nor Judge Friedman relied on the 1867 law when they upheld the verdict against Mudd.

There are those who argue that the difference between a military trial and a civilian jury trial is nothing more than a legal technicality.  Quite the contrary.  The right to trial by jury, a right safeguarded to Samuel Mudd by Congressional legislation, is one of the most precious gifts bestowed on the American legal system by the common law.  Had Mudd been afforded this right, the outcome of his trial might have been different.  John Surratt, an alleged participant in the Lincoln assassination plot,  was given a jury trial in Washington, D. C. instead of a military trial.  There was a hung jury in that case, with all the Northern jurors except one voting Guilty and all the Southern jurors voting Not Guilty.  This indicates that trying Mudd by a jury might have made a very practical difference in the outcome of his case.

Five key mistakes were made in the handling of Richard Mudd's 1990 petition on behalf of Samuel Mudd.  The first mistake was made by the Army Board for the Correction of Military Records, when it decided in 1992 to reopen the Mudd case instead of leaving that case to the verdict of history.

The second mistake was Judge Friedman's 1998 ruling.  The judge ordered the Secretary of the Army to reconsider Assistant Secretary Lister's 1996 decision to reject Richard Mudd's petition.  Lister's decision had pointed out, quite correctly, that District Judge Boynton, over a century ago, had considered and rejected the same arguments which Richard Mudd was now making to the Army concerning the legality of the Hunter Commission.  Judge Friedman's ruling, by requiring a reconsideration of the case, effectively set up the Department of the Army as an appeals court to reexamine the decision of District Judge Boynton.  The Army should not be put in the position of reviewing the correctness of federal court decisions, even if those decisions were wrong.  Reconsidering the rulings of federal courts is not a proper function for the military.

Once it was forced to re-examine Judge Boynton's decision, the Army committed the third mistake by agreeing with Judge Boynton on the merits of the case.  In upholding the legality of the Hunter Commission, the Army perpetuated Judge Boynton's error of failing to apply the Habeas Corpus Act of 1863, under which people like Mudd were required to be handled by the civilian courts.  This puts the Army on record as supporting an abuse of citizens' rights by the military.

The fourth mistake was made by Judge Friedman when, having incorrectly reopened the case, he upheld the Army on the merits, i. e., b saying that Samuel Mudd didn't have a right to a jury trial. Perhaps the lawyers didn't tell Judge Friedman about the Habeas Corpus Act, so arguably Judge Friedman had to ignore the issue based on the rules of legal pleading. But Friedman should at least have pointed out to the Mudd family lawyers the existence of such a key issue, if only for the purpose of chiding the Mudd family for not raising that issue.

The fifth mistake was also made by the Army (and perhaps by Judge Friedman as well, although again, it's possible that the Mudd family lawyers never presented the issue to him) when it failed to consider troublesome issues other than the Habeas Corpus Act affecting the validity of the Hunter Commission trial.  In reviewing Samuel Mudd's "military records," the Army ought to have considered some issues which affected the fairness of Mudd's trial, at least by modern standards.

* Samuel Mudd was a Roman Catholic, a fact which was brought out during the trial.  One of the members of the Hunter Commission was Brigadier General Thomas W. Harris.  In 1897, Harris published a book entitled Rome's Responsibility for the Assassination of Abraham Lincoln.  The theme of this book was that President Lincoln's assassination had been the result of a Catholic plot.  It is open to question whether Brigadier General Harris was fully free from bias against Dr. Mudd, in view of Dr. Mudd's religion and Harris' later writings about that religion.  Bias on the part of a judge is, of course, a good reason to set aside a trial verdict.
* The members of the Hunter Commission followed the newspaper coverage of the trial, and one member of the Commission attended a lecture praising Lincoln as a martyr.  Such conduct on the part of jurors in a modern trial, or for that matter on the part of officers at a modern court-martial, would be considered highly improper. Imagine a juror in the Lorena Bobbitt case attending a lecture by a men's rights group on the subject of "John Wayne Bobbitt-The Unkindest Cut of All." If such a juror were caught, he would get the biggest lecture of his life, he'd get thrown off the jury, and maybe he'd get thrown into jail. The Hunter Commission apparently considered itself exempt from those human frailties which would subject a juror to temptation.
* Judge Advocate General Holt and his two assistants served as prosecutors at the trial.  They also sat with the members of the Hunter Commission during their deliberations.  Neither the defendants nor their attorneys were accorded a similar privilege.  In other words, the prosecutors were closeted with the judges outside the presence of the defense.  This is known as ex parte contact, and it is today considered a serious violation of a defendant's rights.  One federal judge has been successfully impeached for having ex parte contacts with a party to a case.
* Mudd and his co-defendants, during their lifetimes, were not allowed to appeal the decision of the Hunter Commission.  It is true that federal Judge Boynton heard a challenge to the Hunter Commission's jurisdiction, but judge Boynton limited his consideration of the case to jurisdictional issues.  In his 1868 decision refusing to release Mudd and two of his alleged accomplices, Judge Boynton said: "It is a matter of public notoriety that some persons, more or less acquainted with the evidence on which these convictions were based, doubt the fair sufficiency of that evidence to necessitate beyond reasonable doubt the conclusion arrived at.  But this is a question with which I have nothing to do." An appeals court, in contrast, could have reviewed the evidence to ascertain whether it was sufficient to sustain the verdict.

In a mock "appeal" of Mudd's case held a few years ago at a law school in Richmond, one of the "judges" ruled the evidence to be insufficient to sustain the verdict (the other two mock judges said that Mudd had been deprived of his right to a jury trial). Incidentally, I have had the pleasure of speaking to Robinson Everett, a retired military appeals judge living in Durham, N. C., who helped set up this mock "appeal" and participated in it. Honorable military judges such as Everett would not stoop to the kind of misbehavior displayed by the members of the Hunter Commission.

The United States now recognizes the importance of appeals in criminal cases: The President and Senate have ratified the United Nations Convention on Civil and Political Rights, which provides in Article 14(5) that "[e]veryone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law."  For this reason and the other reasons listed above, Mudd's trial fell short of modern standards of fairness, and that fact ought to be noted on the record of the trial.

Now that Judge Friedman has ruled against the Mudd family, the family can make an appeal to the DC Circuit Court of Appeals. Hopefully, that court (if the technical rules of procedure allow it) will finally declare what should have obvious from the very beginning-that Dr. Samuel Mudd had a right to a trial by jury, and that this right had been guaranteed to him by Congress in the Habeas Corpus act of 1863. If it has the power to do so, the appeals court should also declare that Samuel Mudd's conviction was unjust and therefore the military records law requires that his conviction should be set aside. Now that the courts are addressing the issue of Samuel Mudd's rights, the courts may as well get it right for a change.

In theory, any decision by the federal appeals court could be appealed to the United States Supreme Court. The Supreme Court would get to decide whether to take the case, and it's not particularly likely that the Supremes would want to get involved, especially since Chief Justice William Rehnquist has already published a book (*All the Laws But One*) in which he criticizes the revival of the Mudd case.

In the future, if a civilian is convicted by a miltary commission, he should not be allowed to use the military records law to appeal his case, but should instead be given an appeal through the federal court system. Hopefully, there won't be many civilians tried by military commission in the future, although one never knows.

Congress should order a review of the records of past military commissions, requiring the reversal of all unjust convictions (injustice being measured by modern standards, not the standards of 1865).

The verdict of history on Samuel Mudd will probably be something like this: Mudd was a Confederate sympathizer who joined a conpiracy to kidnap the President of the United States, Abraham Lincoln.  Joining such a conspiracy was seditions, probably treasonous, behavior.  Mudd also gave shelter to Lincoln's assassin Booth, most likely in the knowledge that Booth had killed the President.  This assistance to Booth is mitigated by the fact that it was Mudd's professional duty to set the killer's injured leg.  The verdict of history should also be that Mudd was illegally denied a trial by jury on the charges against him, and that his military trial was riddled with unfairness.

John Wilkes Booth was unjustified in killing Lincoln, despite whatever wrongs Lincoln had committed against the South.  By a similar argument, the U. S. government was unjustified in denying Mudd's legal rights to a fair trial and his right to a jury trial, even though Mudd was probably guilty of serious crimes.  In neither case did one crime justify another.


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