Hypothetical Question(s)

[Laurie Verge]

IF Andrew Johnson had acknowledged and signed the clemency plea for Mrs. Surratt, she would have received a sentence of life imprisonment. When the Supreme Court finally rendered the Milligan decision, do you think that her lawyers would have then filed an appeal for a re-trial under a civilian court? Would they have been successful?

PS: School-teacher me will expect an explanation - not just "Yes" or "No."

[J. Beckert]

I don't remember hearing any of the other conspirator's lawyers did, so I'll say no. If they had done this for her, I think she'd still be found guilty, but with a far lessor sentence. Also, she surely would have been pardoned in 1869 like Mudd, Arnold and Spangler were.

[Rob Wick]

Uhhh, Miss Verge, is any of this going to be on the test?

Seriously, I doubt it. Had Johnson signed the plea, I think her lawyers would have realized that was probably the best they were going to get, and to put her on trial again could have easily resulted in her getting a far worse sentence then spending the rest of her life in jail. I've never wavered in my belief that the military commission, as unfair as it might seem, did more to keep the ones who made it out alive still living. Had they been tried by a civilian court, I imagine all of them would have hung.

Best
Rob

[J. Beckert]

That's an interesting take, Rob, but it's come up before that a civilian trial, with the accused being judged by their Southern feeling Maryland peers would have gotten a more lenient sentence, if found guilty at all.

[Thomas Thorne]

Assuming Mary still had lawyers,I believe she would have appealed. She likely would have encountered the same judge who denied Mudd's appeal on the grounds that the status of Washington DC as a military camp precluded application of the the ex parte Milligan criteria.
A fair reading of Milligan compels me to disagree. Washington DC was not in rebellion and the civil courts were still functioning. However the Supreme Court in its famous WW2 decision ex parte Quirin involving the execution of German saboteurs after a military trial -one of whom was an American citizen-ignored Milligan.
Tom

[L Verge]

Reverdy Johnson was so against the military court, I suspect he might have made the appeal and maybe would have had Ewing's support?? Just a guess on my part.

Someone refresh my memory - was Mudd's first appeal in a DC court or in Florida?

[Rob Wick]

(07-25-2012 05:34 PM)J. Beckert Wrote:  That's an interesting take, Rob, but it's come up before that a civilian trial, with the accused being judged by their Southern feeling Maryland peers would have gotten a more lenient sentence, if found guilty at all.

Joe, doesn't that assume that any jury would have been made up solely of Maryland peers? Any good lawyer during the voir dire process would do their darndest to make sure they got the best jury they could have, and since the trial would have been held in D.C. (my assumption) there's no telling as to just who would have been on the jury. Your point, however, is well-taken.

Best
Rob

[L Verge]

John Surratt's civilian trial in D.C. ended with a hung jury along North/South persuasion lines. 8-4 for acquittal. Of course, there was also no convincing evidence that he had any contact with Booth between the failed kidnapping and the assassination.

[Rob Wick]

Couple of differences, though. This was the first trial for John and by that point, the feelings had negated to a point, and, as you mention, the evidence was pretty poor for murder.

However, that would have been Mary's second trial, with whatever evidence the government could get introduced from the first trial, and the words of Andrew Johnson (the Nest in which the egg was hatched) ringing in their ears.

If I was a lawyer, and my client had been convicted but then had her sentence commuted by the president, to take a chance on the hopeful sympathies of my southern neighbors would be too great a risk to take.

Best
Rob

[Craig Hipkins]

I will agree with Rob Wick on this one. I believe that if Johnson had signed the clemency plea Mary's lawyers would probably have counted their blessings. The plea was to spare her life and they would have found victory in that.
I am not sure how it works, but isn't there some sort of time limit to make an appeal? Perhaps they would have waited a while before appealing in a civilian court.
Of course it probably would have been confusing straightening out the different rules regarding the military and civilian courts that they might have been able to come up with a good argument to get an appeal.

Craig

[Gene C]

I don't think Mrs Surratt would have survived many years in prison, she probably would have died before any appeals process reached a conclusion.

[Lindsey]

So many good points already, so forgive me if I'm repeating anything anyone has already said. I can usually see both sides of things (the glass is both half full and half empty) and I see all those "shades of grey" so here are my two scenarios that I could see either as being possible and I'm not sure which one I'd feel would be more likely:
1. She gets the life in prison and Aiken and/or Clampitt back off bc that is the best that she would get.
2. They do push for the appeal and maybe Reverdy steps up to the plate as I can't imagine they could bar him from the case now that it would be civilian.

What kind of power could Johnson have for stopping a civilian trial? My only knowledge of the law comes from the Law & Order shows but could he tell an appelate judge not to take the case? Chances are she would get the type of jury that John Jr. got and if the trial happened soon after the first, I would imagine there would be public outcry that she would then be set free.

If she were successful, does that then make her original verdict null and void?

[Rob Wick]

Lindsey,

If there had been a second trial after a successful appeal, and she had been acquitted, then that would indeed make the original trial verdict null and void, but I still think the chances of that happening would be much slimmer than likely.

I also don't see any way that Johnson could have legally stopped or influenced a civilian trial. If he had tried, that could have been grounds for a mistrial. Back when Charles Manson was on trial, he almost caused a mistrial when he held up a newspaper in court that read "Manson Guilty Nixon Declares." It stopped the trial and required the judge to individually poll each member of the jury to ask if that would influence their verdict. The trial moved forward after that.

Best
Rob