Very appropriate words

[L Verge]

Wild Bill never stops studying (thank the gods), and he just shared some great words of wisdom for historians young and old to heed:

Alfred H. Kelly, “Clio and the Court: An Illicit Love Affair,” Supreme Court Review, 1965 (No. 1, 1965), at 144.

“I manipulated history in the best tradition of American advocacy, Carefully marshaling every scrap of evidence in favor of the desired interpretation, and just as carefully doctoring all the evidence to the contrary, either by suppressing it when that seemed plausible, or distorting it when suppression was not possible.”

Alfred H. Kelly, a noted lawyer and writer of Constitutional Law, worked on the Brown v. Bd. of Education et al. the 1954 school segregation case.

Manipulation of facts is a dangerous path to follow.

[John Fazio]

(11-21-2016 06:26 PM)L Verge Wrote:  Wild Bill never stops studying (thank the gods), and he just shared some great words of wisdom for historians young and old to heed:

Alfred H. Kelly, “Clio and the Court: An Illicit Love Affair,” Supreme Court Review, 1965 (No. 1, 1965), at 144.

“I manipulated history in the best tradition of American advocacy, Carefully marshaling every scrap of evidence in favor of the desired interpretation, and just as carefully doctoring all the evidence to the contrary, either by suppressing it when that seemed plausible, or distorting it when suppression was not possible.”

Alfred H. Kelly, a noted lawyer and writer of Constitutional Law, worked on the Brown v. Bd. of Education et al. the 1954 school segregation case.

Manipulation of facts is a dangerous path to follow.

Laurie:

I completely agree with your last statement. It is to be regretted that the Justices, their clerks and/or opposing counsel did not see the distortion. I certainly agree with the Court's decision in the case, but a result achieved with falsehood is like picking fruit from a poisoned tree.

Incidentally, I just finished reading your chapter in The Lincoln Assassination Riddle re Mary Surratt and believe your conclusions are, for the most part, on the money. We differ only in your surmise that there were two plots, one to capture and one to murder, though you do not say expressly that you believe this. You know how I feel about the "capture" plot, so I will not belabor the issue. But I will say that in my judgment her behavior before and after the assassination is more consistent with knowledge that murder was intended that night, not capture. Her statements to Anna that "Anna, come what will, I am resigned. I think J. Wilkes Booth was only an instrument in the hands of the Almighty to punish this proud and licentious people", and to Weichmann that "I am afraid all this rejoicing will be turned into mourning , and all this glory into sadness", and again to Weichmann "Pray for my intentions" and "Pray for them anyhow", are especially telling. To me, these kinds of remarks are not made in contemplation of the lesser offense of kidnapping, but of the greater offense of murder. Further, Herold's, Atzerodt's and John T. Tibbett's statements incriminating Mary are all but conclusive.

John

[L Verge]

Sorry, John, but you have "manipulated" my thoughts on the conspiracy slightly. I do believe that there was an original capture scheme (at least 3-4 of them under different "leaders" during the war) and that Booth turned to his own resources and assassination at the end.

That said, I still believe that conspiracy is conspiracy, no matter the actual outcome of the plot. Therefore, I understand why the federal system tried Mrs. Surratt as a conspirator, and her actions before and after indicate that she was implicated - knowingly or unknowingly. To summarize my thoughts on the issue of Mrs. Surratt: Whether guilty or innocent, she made friends with the wrong people and paid the penalty when the conspiracy took a deadly turn. The conspiracy to use Lincoln as the final move in the chess game of war remained the same.

I am probably going to regret asking this, but if you had taken on the task of representing Mrs. Surratt before the tribunal, what approach would you have taken in defending her?

[John Fazio]

(11-22-2016 10:56 AM)L Verge Wrote:  Sorry, John, but you have "manipulated" my thoughts on the conspiracy slightly. I do believe that there was an original capture scheme (at least 3-4 of them under different "leaders" during the war) and that Booth turned to his own resources and assassination at the end.

That said, I still believe that conspiracy is conspiracy, no matter the actual outcome of the plot. Therefore, I understand why the federal system tried Mrs. Surratt as a conspirator, and her actions before and after indicate that she was implicated - knowingly or unknowingly. To summarize my thoughts on the issue of Mrs. Surratt: Whether guilty or innocent, she made friends with the wrong people and paid the penalty when the conspiracy took a deadly turn. The conspiracy to use Lincoln as the final move in the chess game of war remained the same.

I am probably going to regret asking this, but if you had taken on the task of representing Mrs. Surratt before the tribunal, what approach would you have taken in defending her?

Laurie:

A good question and the answer to which, unfortunately, may imply criticism of Clampitt, Aiken and even Johnson, for as long as he was around. I am loathe to do that inasmuch as I wasn't there and was therefore not privy to nearly as much information as they were. Still, I have a few comments:

1. Mrs. Surrat was accused of "aiding and abetting Booth and the other conspirators, knowing their intent and purpose, and of aiding and abetting their escape."
2. I would have made the focus of the defense the words "knowing their intent and purpose", which, like the rest of the charge, must be proved beyond a reasonable doubt.
3. Though unlikely, it is possible that she made the two trips to Surrattsville, delivered the glasses and told Lloyd to get out the shooting irons because they would be called for, as personal favors to Booth, not knowing what his ultimate purposes were. Booth would wish to share the whole truth with as few people as possible. That is Spycraft 101. I would have hammered on reasonable doubt as to her knowledge of what the items Lloyd was holding were to be used for.
4. I would have made a greater effort to impeach Weichmann's credibility by alleging that his testimony was given to prevent his own prosecution. There was evidence for that. I would have backed this up with testimony from Brophy, Carland, Gifford and Nora Fitzpatrick, at least. Much of the testimony they gave in Surratt's trial would have been very effective for impeachment purposes in the trial of the conspirators. The attempt to introduce Brophy's Affidavit and to call him as a witness came too late. Everything was over by then and everyone was totally exhausted and therefore had no wish to hear from him. He and his Affidavit should have been introduced into the trial as early as possible, while everyone was relatively fresh.
5. I would not have introduced the testimony about Mary's eyesight. That was counter-productive, because no one believed her. The attempt to prove non-recognition of Powell, therefore, only had the effect of demonstrating that she was quite capable of telling very big lies and that her counsel were quite capable of accepting them. Recognition of Powell was perfectly obvious to everyone. Her lawyers should simply have acknowledged that she recognized him, but that she denied it because she wished to avoid association with him, inasmuch as she had no idea what he had done and what part he had played in Booth's conspiracy. She knew she was under suspicion and was, at that very moment, being arrested. So she panicked and made a mistake, in a feeble attempt to defend herself.
6. Similarly, I would not have introduced testimony about Lloyd being a drunken sot. That, too, was counter-productive, because it made the defense look like it was grasping for straws. Lloyd's credibility should also have been impeached, but not by allegations of drunkenness, which were not relevant, but by introducing testimony to show that he, too, was motivated by a perceived need to save his own skin, because he, too, was probably complicit, having a pretty good idea what the firearms, tools, whisky and glasses were to be used for after they had been left with him by the likes of Atzerodt, Herold and John Surratt.

Having done all this, is there any assurance that the result would have been different? Of course not.

John

[TRose]

I'm new to the forum although i met you both last year at the Surratt Conference. I just wanted to add/bring up the fact that Powell swore to Mary's innocence while imprisoned. I have always been curious as to why. Guilt for showing up at her home and therefore casting greater suspicion on her or just a natural inclination to defend the seeming defenseless widow in place of her coward son? Or, possibly, she was innocent...? I tend to think she knew that something was afoot. Booth manipulated everyone for his own purposes and ends, and i don't believe surratt was any different.

[RJNorton]

Welcome to the forum, Tony. IMO, Booth may have never told Lewis Powell how much Mary Surratt may have known. I think it's possible she knew a lot more than Powell thought she did. This is just an opinion as I do not really know why he maintained her innocence.

[Gene C]

Tony, I share your thoughts on this.

[L Verge]

(11-24-2016 12:59 AM)John Fazio Wrote:  

(11-22-2016 10:56 AM)L Verge Wrote:  Sorry, John, but you have "manipulated" my thoughts on the conspiracy slightly. I do believe that there was an original capture scheme (at least 3-4 of them under different "leaders" during the war) and that Booth turned to his own resources and assassination at the end.

That said, I still believe that conspiracy is conspiracy, no matter the actual outcome of the plot. Therefore, I understand why the federal system tried Mrs. Surratt as a conspirator, and her actions before and after indicate that she was implicated - knowingly or unknowingly. To summarize my thoughts on the issue of Mrs. Surratt: Whether guilty or innocent, she made friends with the wrong people and paid the penalty when the conspiracy took a deadly turn. The conspiracy to use Lincoln as the final move in the chess game of war remained the same.

I am probably going to regret asking this, but if you had taken on the task of representing Mrs. Surratt before the tribunal, what approach would you have taken in defending her?

Laurie:

A good question and the answer to which, unfortunately, may imply criticism of Clampitt, Aiken and even Johnson, for as long as he was around. I am loathe to do that inasmuch as I wasn't there and was therefore not privy to nearly as much information as they were. Still, I have a few comments:

1. Mrs. Surrat was accused of "aiding and abetting Booth and the other conspirators, knowing their intent and purpose, and of aiding and abetting their escape."
2. I would have made the focus of the defense the words "knowing their intent and purpose", which, like the rest of the charge, must be proved beyond a reasonable doubt.
3. Though unlikely, it is possible that she made the two trips to Surrattsville, delivered the glasses and told Lloyd to get out the shooting irons because they would be called for, as personal favors to Booth, not knowing what his ultimate purposes were. Booth would wish to share the whole truth with as few people as possible. That is Spycraft 101. I would have hammered on reasonable doubt as to her knowledge of what the items Lloyd was holding were to be used for.
4. I would have made a greater effort to impeach Weichmann's credibility by alleging that his testimony was given to prevent his own prosecution. There was evidence for that. I would have backed this up with testimony from Brophy, Carland, Gifford and Nora Fitzpatrick, at least. Much of the testimony they gave in Surratt's trial would have been very effective for impeachment purposes in the trial of the conspirators. The attempt to introduce Brophy's Affidavit and to call him as a witness came too late. Everything was over by then and everyone was totally exhausted and therefore had no wish to hear from him. He and his Affidavit should have been introduced into the trial as early as possible, while everyone was relatively fresh.
5. I would not have introduced the testimony about Mary's eyesight. That was counter-productive, because no one believed her. The attempt to prove non-recognition of Powell, therefore, only had the effect of demonstrating that she was quite capable of telling very big lies and that her counsel were quite capable of accepting them. Recognition of Powell was perfectly obvious to everyone. Her lawyers should simply have acknowledged that she recognized him, but that she denied it because she wished to avoid association with him, inasmuch as she had no idea what he had done and what part he had played in Booth's conspiracy. She knew she was under suspicion and was, at that very moment, being arrested. So she panicked and made a mistake, in a feeble attempt to defend herself.
6. Similarly, I would not have introduced testimony about Lloyd being a drunken sot. That, too, was counter-productive, because it made the defense look like it was grasping for straws. Lloyd's credibility should also have been impeached, but not by allegations of drunkenness, which were not relevant, but by introducing testimony to show that he, too, was motivated by a perceived need to save his own skin, because he, too, was probably complicit, having a pretty good idea what the firearms, tools, whisky and glasses were to be used for after they had been left with him by the likes of Atzerodt, Herold and John Surratt.

Having done all this, is there any assurance that the result would have been different? Of course not.

John

Believe it or not, I will not argue with you! I think your first and last sentences tell the story - The defense lawyers (no matter who they might have been) were up against a stone wall.

Even Ewing, with his "prestige" and background could only save Mudd (I think) because of the fact that the good doctor was supposedly not in touch with Booth from March until April 15. Those of you who know me know that I think Mudd did have touch with Herold regarding being ready on April 12 or 13; but of course, I can't prove it.

Clampitt and Aiken were junior league going against tough opponents, with Stanton - a good lawyer himself - calling plays from the sidelines.

Your summation, to me, says it all. One question: Do the same legal principles and tactics apply in a military court as in a criminal or civil court? I hope Burrus Carnahan will touch on this at the Surratt conference in April.

---

(11-24-2016 02:08 PM)Gene C Wrote:  Tony, I share your thoughts on this.

As do I. I've taken a beating from some over the years who think that I should support the innocence of Mrs. Surratt since I am director of the Surratt House Museum. I prefer to think of myself as an educator who presents both sides of the story - with one side just being much more logical than the other...

[Dennis Urban]

Powell made his statement about Mary's innocence based on the little he actually knew from being in her house several times. He could not have known all to which she was privy. I believe Powell's compassionate side, if there truly was one, was trying to save a "lady" from the gallows. I do believe Mary to be a lady, though misguided and easily influenced. Her southern sympathies would not allow her to accept the truth in what she knew of the plot. Had Mary reported to the authorities, well before April, what she knew, her neck would not have been stretched. However she also wanted to protect her son. I believe that is what really compromised her thought and earned her the rope.

John, I like your approach to the defense of Mary but I don't believe it would have made a difference. Stanton wanted his version of revenge and he was going to get it.

[John Fazio]

(11-28-2016 06:52 PM)Dennis Urban Wrote:  Powell made his statement about Mary's innocence based on the little he actually knew from being in her house several times. He could not have known all to which she was privy. I believe Powell's compassionate side, if there truly was one, was trying to save a "lady" from the gallows. I do believe Mary to be a lady, though misguided and easily influenced. Her southern sympathies would not allow her to accept the truth in what she knew of the plot. Had Mary reported to the authorities, well before April, what she knew, her neck would not have been stretched. However she also wanted to protect her son. I believe that is what really compromised her thought and earned her the rope.

John, I like your approach to the defense of Mary but I don't believe it would have made a difference. Stanton wanted his version of revenge and he was going to get it.

Dennis:

I agree about Powell and Mary: he could not have known the full extent of her involvement in Booth's conspiracy. Booth compartmentalized the conspiracy, which is Spycraft 101. Arnold and O'Laughlen knew even less than Powell. I would add that Powell was also motivated to declare her innocence, in part, by the fact that he felt he had something to do with her arrest and incarceration, having blundered by coming to the boardinghouse at a most inopportune time. Of course, she was in the process of being arrested anyway, but that detail was apparently lost on him.

I disagree with your statement that she did not accept the truth of what she knew about the plot. I believe, rather, that she knew exactly what Booth was going to do and fully accepted it as well-deserved retribution against the author of the South's misery, as well as an act that offered at least some hope for an otherwise hopeless cause. Recall the testimony of John T. Tibbetts at the trial of John Surratt in 1867. There was no way on earth she would have gone to the authorities and revealed the conspiracy. Yes, of course, she wanted to protect her son, but even if her son had not been involved, she would not have blown the whistle on Booth, her "pet".

It is true that Stanton wanted her dead, but so did Johnson, who said she kept the nest that hatched the egg, and who resisted all attempts to save her, even, most probably, to lying about Holt's presentation of the Commissioner's recommendation against execution.

John

---

(11-24-2016 06:28 PM)L Verge Wrote:  

(11-24-2016 12:59 AM)John Fazio Wrote:  

(11-22-2016 10:56 AM)L Verge Wrote:  Sorry, John, but you have "manipulated" my thoughts on the conspiracy slightly. I do believe that there was an original capture scheme (at least 3-4 of them under different "leaders" during the war) and that Booth turned to his own resources and assassination at the end.

That said, I still believe that conspiracy is conspiracy, no matter the actual outcome of the plot. Therefore, I understand why the federal system tried Mrs. Surratt as a conspirator, and her actions before and after indicate that she was implicated - knowingly or unknowingly. To summarize my thoughts on the issue of Mrs. Surratt: Whether guilty or innocent, she made friends with the wrong people and paid the penalty when the conspiracy took a deadly turn. The conspiracy to use Lincoln as the final move in the chess game of war remained the same.

I am probably going to regret asking this, but if you had taken on the task of representing Mrs. Surratt before the tribunal, what approach would you have taken in defending her?

Laurie:

A good question and the answer to which, unfortunately, may imply criticism of Clampitt, Aiken and even Johnson, for as long as he was around. I am loathe to do that inasmuch as I wasn't there and was therefore not privy to nearly as much information as they were. Still, I have a few comments:

1. Mrs. Surrat was accused of "aiding and abetting Booth and the other conspirators, knowing their intent and purpose, and of aiding and abetting their escape."
2. I would have made the focus of the defense the words "knowing their intent and purpose", which, like the rest of the charge, must be proved beyond a reasonable doubt.
3. Though unlikely, it is possible that she made the two trips to Surrattsville, delivered the glasses and told Lloyd to get out the shooting irons because they would be called for, as personal favors to Booth, not knowing what his ultimate purposes were. Booth would wish to share the whole truth with as few people as possible. That is Spycraft 101. I would have hammered on reasonable doubt as to her knowledge of what the items Lloyd was holding were to be used for.
4. I would have made a greater effort to impeach Weichmann's credibility by alleging that his testimony was given to prevent his own prosecution. There was evidence for that. I would have backed this up with testimony from Brophy, Carland, Gifford and Nora Fitzpatrick, at least. Much of the testimony they gave in Surratt's trial would have been very effective for impeachment purposes in the trial of the conspirators. The attempt to introduce Brophy's Affidavit and to call him as a witness came too late. Everything was over by then and everyone was totally exhausted and therefore had no wish to hear from him. He and his Affidavit should have been introduced into the trial as early as possible, while everyone was relatively fresh.
5. I would not have introduced the testimony about Mary's eyesight. That was counter-productive, because no one believed her. The attempt to prove non-recognition of Powell, therefore, only had the effect of demonstrating that she was quite capable of telling very big lies and that her counsel were quite capable of accepting them. Recognition of Powell was perfectly obvious to everyone. Her lawyers should simply have acknowledged that she recognized him, but that she denied it because she wished to avoid association with him, inasmuch as she had no idea what he had done and what part he had played in Booth's conspiracy. She knew she was under suspicion and was, at that very moment, being arrested. So she panicked and made a mistake, in a feeble attempt to defend herself.
6. Similarly, I would not have introduced testimony about Lloyd being a drunken sot. That, too, was counter-productive, because it made the defense look like it was grasping for straws. Lloyd's credibility should also have been impeached, but not by allegations of drunkenness, which were not relevant, but by introducing testimony to show that he, too, was motivated by a perceived need to save his own skin, because he, too, was probably complicit, having a pretty good idea what the firearms, tools, whisky and glasses were to be used for after they had been left with him by the likes of Atzerodt, Herold and John Surratt.

Having done all this, is there any assurance that the result would have been different? Of course not.

John

Believe it or not, I will not argue with you! I think your first and last sentences tell the story - The defense lawyers (no matter who they might have been) were up against a stone wall.

Even Ewing, with his "prestige" and background could only save Mudd (I think) because of the fact that the good doctor was supposedly not in touch with Booth from March until April 15. Those of you who know me know that I think Mudd did have touch with Herold regarding being ready on April 12 or 13; but of course, I can't prove it.

Clampitt and Aiken were junior league going against tough opponents, with Stanton - a good lawyer himself - calling plays from the sidelines.

Your summation, to me, says it all. One question: Do the same legal principles and tactics apply in a military court as in a criminal or civil court? I hope Burrus Carnahan will touch on this at the Surratt conference in April.

---

(11-24-2016 02:08 PM)Gene C Wrote:  Tony, I share your thoughts on this.

As do I. I've taken a beating from some over the years who think that I should support the innocence of Mrs. Surratt since I am director of the Surratt House Museum. I prefer to think of myself as an educator who presents both sides of the story - with one side just being much more logical than the other...

Laurie:

In answer to your question re rules of procedure, military courts are not a creature of statute, but ad hoc judicial bodies. As such, they may make their own Rules of Procedure and do. They are not bound to follow rules that obtain for civil courts (by which is meant non-military civil and criminal courts). As a practical matter, however, they frequently make use of legal precedents from civil cases and civil law, and, in the trial of the conspirators, both sides did this. The civil law did not differ significantly from the military law anyway.

John

[SSlater]

I don't know very much about LAW, so I would like some thoughts from some one who does.
Through all of our debates we never mention Harney. If his activity is considered, the first plan is dead and buried and an entirely separate plan is in effect. One that none of the others were part of the planning. Booth knew about the new plan and it appears that he never told the others.
Thus, all the planning for an abduction , is trash-canned - and Booth's crew is sent home. Harney is the only participant in the new plan. There are not any "drivers", sitting in the get-away cars.
So. Harney's plan is destroyed by his capture and Booth grabs a gun and shoots Lincoln. (That first crew refused to help Booth whenever he mentioned "Shooting" anyone). But all of a sudden, they are cold blooded killers. Mary Surratt was never involved in a shooting. She was active in "cleaning -up" the failed plan, the "shooting-irons and all the stuff. She was out in left field - on the 14th.
It appears that the old crew never knew there was to be a killing. It was never a part of their scheme. Yet, they hanged, for nonparticipation
I look at the second plan as an entirely separate endeavor. since they didn't know about it - had no part in it - they sure couldn't squeal.

In my opinion, they paid the price for the North's lack of knowledge of Harney's plan. His "success" was paid for with their lives.

Is there anyone on My-Side?

[RJNorton]

In addition to John S.'s (SSlater's) questions, I have one I'd like to ask: does anyone know why the mailman, John T. Tibbett, did not testify at the 1865 conspiracy trial?

[Gene C]

His summons was lost in the mail?

[L Verge]

John S. - I agree in principle with your "two separate plots" theory, but I'm not sure that conspiracy law does. Also, didn't the military court make a distinction between who knew what when as they spared those who had no contact with Booth after March and hanged those who did? I think Mary Surratt paid dearly for her trip to Surrattsville that day.

[SSlater]

Laurie. The more I study the events of the assassination, the more I am convinced that the guilty verdict was based on "Hurry up, we have to hang someone by Tuesday".
If they hanged all the people Booth "talked to", how about the Druggist in Boston? How about all the Actors that he gave letters to? Merely "meeting" doesn't mean you "plotted". Most importantly - Booth was not "in charge", Harney was. (or Richmond was .)
As for Mary, she may have been House Cleaning. -- getting rid of all the junk associated with the first plot. Did she say explicitly, that BOOTH would pick up rifles? Why did Booth need the rifles after he got to the Tavern? By then he was IN THE SOUTH. Field glasses and the other items were not contraband, they belonged to Booth - Get rid of them!
(I am of the opinion that the South dumped Booth completely. Cawood didn't help. Quesenbury didn't, she got rid of him quickly. Stuart wasn't very pleasant either. Booth was not on a Confederate mission as he ran south. Even THE TRAP didn't greet him with joy.

Laurie. I hope our messages are entertaining to you while you get your convalescence. Take good care - you are needed here.