So I just finished re-reading American Brutus, and I ran across something in particular that confused me. For a while now, I've been going on the idea that the co-conspirators were charged with murder even if they believed that the plan was still only to kidnap. In Blood on the Moon, Ed Steers goes into this a little bit, but I believe these lines (page 210, paperback) sum up his point…

"Most important to the case of the Lincoln conspirators, a person may be a member of an unlawful conspiracy without knowing all of the details of the conspiracy or even all of the other members."

and

"The law further states that when a felony is committed in pursuance of a conspiracy that had as it's design only a misdemeanor, the misdemeanor becomes merged into the felony."

But now, reading AB (page 364, paperback), Kauffman says this…

"The defense rested in mid-June, and began their closing arguments shortly afterward. They conceded that by the laws of conspiracy, the act of one participant transfers guilt to all. But that holds true only when it is the same act that they had conspired to do. Since the defendants had engaged in a conspiracy to capture the president, they could not be held responsible for Booth's last minute change in the plan.

There seems to be a contradiction on the point of whether or not the defendants could legally be charged with murder. It seems like this would be a matter of fact, not opinion. Is Kauffman simply pointing out the strategy that the defense was using? Because it sounds as if he's stating a fact. Which is correct? What am I missing here? If something obvious has completely gone over my head, please let me down easy.

I have always been under the same impression as you. Anyone entering into a conspiracy is liable for what any member of that conspiracy might do.

I have had this discussion with a lot of lawyers and one year even organized a one-day training session for judges in our county based on the Lincoln assassination conspiracy. No one argued vicarious liability was wrong, and all put a modern name to it -- felony murder. Most used the example of a gang who goes to rob a bank and someone is killed. All will be charged with felony murder, but all may not receive the same sentence.

I also had a lawyer use the example of vicarious liability in explaining Charles Manson's life imprisonment even though he was not present at the crime scene.

I suspect that Kauffman is emphasizing what the defense hoped would happen - that the kidnap plot and the assassination would be viewed as two separate crimes instead of one big conspiracy. IMO, anyone contemplating kidnapping has to have an inkling that something more deadly could occur. In the end, I think we know which way the commission interpreted vicarious liability.

I feel that everyone that was part of the Conspiracy,used"self preservation"and said they knew about the Kidnapping of Lincoln but not the Assassination! Case in point--John Surratt!!!!

Davey tried to make that argument as well, Herb. While it was admirable that all the lawyers tried to get separate trials for their defendants as so many only knew of the kidnapping scheme, there was no way that was going to work. The commission was out for blood, and if you put yourself in their mind-set, it is understandable. Had they focused more on the kidnapping, wouldn’t Booth’s diary have been taken into account?
Now, I could be wrong about the lawyers argument as I am the Queen of “I know I read that somewhere but can’t remember where”!

One need only read Bingham's summation (in its entirety!!) and the case precedent law that he cites (from civil law by the way) to understand the conspiracy law at the time. It differed little from today's conspiracy law. These people were excellent jurists and knew the law inside out. Even the defense attorneys were handicapped. Bingham cites precedent all the way back to Justice John Marshall. The confusion many people have is in thinking the plot to capture is separate from the plot to kill. Did they really think they could carry a president of the United States over 150 miles through enemy occupied territory without someone getting killed. If the plot to capture did not anticipate killing why were the conspirators armed with guns? Same people involved, same target, same objective - to disrupt the military objective of the United States. Terry Nichols was 150 miles away when McVey set off the Oklahoma City bomb. Nichols claimed he didn't know McVey would kill people. Didn't wash. He was found guilty along with McVey. Vicarious liability applies.

(07-20-2012 12:48 PM)Ed Steers Wrote:  One need only read Bingham's summation (in its entirety!!) and the case precedent law that he cites (from civil law by the way) to understand the conspiracy law at the time. It differed little from today's conspiracy law. These people were excellent jurists and knew the law inside out. Even the defense attorneys were handicapped. Bingham cites precedent all the way back to Justice John Marshall. The confusion many people have is in thinking the plot to capture is separate from the plot to kill. Did they really think they could carry a president of the United States over 150 miles through enemy occupied territory without someone getting killed. If the plot to capture did not anticipate killing why were the conspirators armed with guns? Same people involved, same target, same objective - to disrupt the military objective of the United States. Terry Nichols was 150 miles away when McVey set off the Oklahoma City bomb. Nichols claimed he didn't know McVey would kill people. Didn't wash. He was found guilty along with McVey. Vicarious liability applies.

Thanks, Ed for making this clear! You have verified the ramifications of Vicarious liability in terms which I (who is basically a legal idiot!) can readily understand. Thanks a bunch!

Ed, I would like to second Betty and thank you for this explanation. I am a retired middle school teacher who did a mock trial for 24 of the years I taught. Not a year went by when at least one student didn't ask a question such as, "Why was George Atzerodt hanged when he made no attempt on Andrew Johnson's life?" I often received similar questions regarding Mary Surratt and David Herold.

During our pretend trials the student judges nearly always sentenced Atzerodt, Mary Surratt, and David Herold to prison sentences rather than execution (assuming they were found guilty; in some cases one or more were found innocent). Lewis Powell was usually sentenced to hang. In a very few cases Lewis Powell was actually found innocent as I had some really sharp defense attorneys who did tactics such as putting William Bell through an eye exam which he failed.

Consider the fact that if a conspirator had gone to the authorities such that the crime was prevented from taking place no one would have had to die. That is what the law requires. To divest oneself from a conspiracy they must inform the authorities such that the planned crime is prevented. Atzerodt would have lived and so would have Abraham Lincoln.

This seems relatively straight forward, which is why I was surprised when I read that excerpt I posted from American Brutus. To me, it seems ludicrous to say that the kidnapping and the assassination weren't part of the same plot. I suppose from the point of view of an Arnold or O'Laughlen, they could try and say that the plot changed after they had left it, so there's no way they could have known. But as I understand it, that simply doesn't matter in terms of their guilt or innocence. It just seems like a really desperate attempt at a defense, which I guess it was.

I'm with Betty though, I'm basically a legal idiot. Something like this seems to be clear cut, but I suppose there's no such thing in legal matters.

This is a really an informative discussion. Ed, thanks especially for the clarification. Also, need it be mentioned, of course, that Booth did inform some of his "gang" of the change of plans from kidnap to kill? I made a blog post once about Atzerodt-how he could have prevented Lincoln's murder (at the 11th hour) if only he had gone to the authorities. What did he have to lose? He was already guilty in the conspiracy. Perhaps his life would have been spared-and history would have remembered him more sympathetically-and Lincoln would have lived. The whole sad era of Reconstruction might have been so different with Lincoln alive.