The Flimsy Case Against Mary Surratt

[L Verge]

Bill mentioned earlier an article from the Columbia Law Review. I had the pleasure of meeting with its author, Martin S. Lieberman, a professor at Georgetown Law, when he was doing research at our James O. Hall Research Center about two years ago. He and I did not see eye-to-eye on the legality/illegality of the 1865 Tribunal, but I had to back down because he is so well-versed.

If you have a semi-legal mind and about two hours to read and decipher his article on the jurisdiction of the 1865 Commission, go here: https://columbialawreview.org/content/th...ssination.

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(01-13-2019 05:15 PM)mike86002000 Wrote:  

(01-13-2019 04:34 PM)AussieMick Wrote:  One 20th century case that I can think of is the Nuremberg Trials after WW2. The US was a major participant during those trials.

I also point out that the difficulty of finding jury members that are independent and unbiased becomes enormous during high profile cases.

"Milligan and Surratt were not residents of states that had succeeded." ( I think you mean "seceded" )
Why is that relevant ?

I did, of course mean "seceded", thanks. I was pointing out the similarity between the cases of Milligan and Surrat.

People on trial at Nuremberg were not U.S. citizens. I don't think that has anything to do with Milligan or Surratt.

Yes, it's difficult to find "twelve men, good and true".

Mike

The 20th-century case that I was referring to was the trial of the six German saboteurs during WWII. I believe that two of them claimed to be American citizens. They were all tried by military court, and I believe that four were hanged. There was also a case that someone brought to my attention years ago, but all I can remember is that the case had a Japanese or Korean name.

[RJNorton]

(01-13-2019 11:43 AM)mikegriffith1 Wrote:  Stanton knew that it was unlikely that any civilian court would convict Mudd, Surratt, O'Laughlen, Spangler, and Arnold based on the pathetic "evidence" he had against them.

I agree with this, although I would not use the word "pathetic." I think Stanton certainly knew Washington was a divided city based on the sentiments of the residents, and this would make obtaining a totally neutral jury difficult to obtain in a civilian trial. Regarding the defendants Mike mentioned, I think many of them would have ended up with either a hung jury or even a verdict of innocent (especially Spangler) had there been a civilian trial with Washington-area residents sitting on the jury.

Author Andy Jampoler (The Last Lincoln Conspirator: John Surratt's Flight from the Gallows) discusses the make-up of John Surratt's jury on p. 216. He writes, "Reportedly the four for conviction were all Yankees, and seven of the eight who voted to acquit came from the District of Columbia, Virginia, or Maryland." Later he writes, "The jury did not vote on entirely sectional lines, but it very nearly did so." The final vote was 4 for conviction and 8 to acquit. So there was a hung jury in John Surratt's case.

In my opinion, Stanton feared some of the defendants might walk if there had been a civilian trial. I think this fear was one reason he pushed hard for a military tribunal.

I have a "what if" question. If it had been decided this case would be tried in a civilian court, would all 8 have been tried at once, or would there have been 8 separate trials?

[AussieMick]

Obviously I cant speak for the US system ... in fact I cannot really speak for the Aus. judicial system ... anyway, that doesnt stop me having any opinion ...

These type of events have come up before (I think so ? ... havent they?). But this is a little unusual in that O'Laughlen, Spangler and Arnold could be said to be directly involved in the actual assassination . Whilst Mudd and Surratt were more indirectly involved, Mudd certainly was indirect. So separate trails would have some justification.

I think there's always a reluctance to have separate trials. The 'second' jury members would almost certainly be aware of the evidence and results of the first trial. Then there's the evidence given by witnesses during the trials. It would be quite embarrassing/judicially confusing if at the 2nd trial a witness was asked the same or a slightly different question, for example, and gave an answer which seemed at conflict with evidence during a previous trial.

[L Verge]

(01-14-2019 05:49 AM)RJNorton Wrote:  

(01-13-2019 11:43 AM)mikegriffith1 Wrote:  Stanton knew that it was unlikely that any civilian court would convict Mudd, Surratt, O'Laughlen, Spangler, and Arnold based on the pathetic "evidence" he had against them.

I agree with this, although I would not use the word "pathetic." I think Stanton certainly knew Washington was a divided city based on the sentiments of the residents, and this would make obtaining a totally neutral jury difficult to obtain in a civilian trial. Regarding the defendants Mike mentioned, I think many of them would have ended up with either a hung jury or even a verdict of innocent (especially Spangler) had there been a civilian trial with Washington-area residents sitting on the jury.

Author Andy Jampoler (The Last Lincoln Conspirator: John Surratt's Flight from the Gallows)discusses the make-up of John Surratt's jury on p. 216. He writes, "Reportedly the four for conviction were all Yankees, and seven of the eight who voted to acquit came from the District of Columbia, Virginia, or Maryland." Later he writes, "The jury did not vote on entirely sectional lines, but it very nearly did so." The final vote was 4 for conviction and 8 to acquit. So there was a hung jury in John Surratt's case.

In my opinion, Stanton feared some of the defendants might walk if there had been a civilian trial. I think this fear was one reason he pushed hard for a military tribunal.

I have a "what if" question. If it had been decided this case would be tried in a civilian court, would all 8 have been tried at once, or would there have been 8 separate trials?

I went online and posed the question as to whether two or more defendants could be tried at the same time and got this response from a site named nolo.com:

"A joint trial of codefendants (also known as “joinder”) occurs when a judge merges the cases of two or more defendants. Joint trials happen when the issues in the defendants’ cases overlap enough to make a single trial both fair and more efficient.

When Joint Trials are Appropriate:

Defendants don’t have to face the exact same crimes for a judge to join their trials. Rather, all that’s necessary is that the charges relate to substantially the same facts. Joint trials are commonly ordered in complex prosecutions for conspiracy, fraud, or terrorism, where multiple defendants are accused of committing a variety of crimes stemming from one set of facts. Some famous examples of joint trials include the Enron fraud case, the organized crime prosecution of John Gotti and his mob family, and the conspiracy and espionage trial of Julius and Ethel Rosenberg.

In contrast, judges may not join the trials of defendants who simply happen to be charged with the same crime. For example, a judge can’t join the trials of all armed robbery cases on the docket unless those cases involved the same set of facts.

There is no constitutional rule governing joint trials. Judges have broad discretion to decide whether to join trials, and will weigh a variety of factors when making this decision."

Maybe the Booth conspirators could have been tried in a civil court at the same time, but it seems really stupid - like asking for a three-ring circus (worse than what did occur). I wonder if there was precedence in an earlier case? Of the same extreme importance?

[mikegriffith1]

It is very simple: In America, we don't try civilians in a military court if civilian courts are open and operating. It is just that simple and straightforward. There was a reason that Ex Parte Milligan was a unanimous decision from a court with a Republican/Whig majority (including four judges appointed by Lincoln himself). We would do well to heed the words of this unanimous decision:

Military commissions organized during the late civil war, in a State not invaded and not engaged in rebellion, in which the Federal courts were open, and in the proper and unobstructed exercise of their judicial functions, had no jurisdiction to try, convict, or sentence for any criminal offence, a citizen who was neither a resident of a rebellious State nor a prisoner of war, nor a person in the military or naval service. And Congress could not invest them with any such power.

The guaranty of trial by jury contained in the Constitution was intended for a state of war, as well as a state of peace, and is equally binding upon rulers and people at all times and under all circumstances. . . .

Neither the President nor Congress nor the Judiciary can disturb any one of the safeguards of civil liberty incorporated into the Constitution except so far as the right is given to suspend in certain cases the privilege of the writ of habeas corpus.

A citizen not connected with the military service and a resident in a State where the courts are open and in the proper exercise or their jurisdiction cannot, even when the privilege of the writ of habeas corpus is suspended, be tried, convicted, or sentenced otherwise than by the ordinary courts of law.

A key to understanding the Lincoln assassination is to understand that Stanton's demand for a military commission and his appointment of Holt and Bingham to serve as the prosecutors were part of his cover-up. He was not seeking justice. He was trying to direct all attention to his phony Confederate conspiracy theory, which theory soon collapsed under its own fraudulent and illogical weight.

Even Andrew Johnson, whose hatred of the planter class and the Confederacy knew few equals, after seeing how the Radicals ruthlessly attacked him for trying to implement Lincoln's Reconstruction terms, began to grasp that the Radicals, not the Confederates, had the motive, means, and opportunity to murder Lincoln. It is worth remembering that some Radicals actually tried to gather false testimony that would implicate Johnson in Lincoln's murder, and that some of them publicly suggested that Johnson was involved with Lincoln's murder, after they realized that Johnson was going to try to follow Lincoln's Reconstruction program after all.

[GustD45]

MIke, remember that decision you've cited came years after the Military Comission. In my opinion, Stanton did believe there was a larger plot involving the Confederacy which gave him the impetus to argue for a trial by Military Court. Was he wrong? I don't think he was. Stanton believed through the trial he would uncover a connection. Obviously one wasn't found nor did it prove one existed, but this does not mean he was trying to cover up anything. Edwin Stanton did what he thought was right under the existing circumstances.

[mike86002000]

(01-13-2019 03:59 PM)wpbinzel Wrote:  Hello, Another Mike. Welcome to the forum.
I know a little bit about the law and Ex Parte Milligan. See the March 2018 issue of the Columbia Law Review.

Mr. Binzel,
I'm in the process of reading the article you mentioned. Thanks for bringing it up. It is in Vol. 118, Issue 2, titled: "The Law (?) Of The Lincoln Assassination", by Martin Lederman. I'm becoming a fan of his. I see you and Laurie Verge are mentioned in the acknowledgements. You should be proud.
I had problems accessing the article using the URL Laurie provided, probably because of my browser, and found it on "myjstor" @:
https://www.jstor.org/stable/26371823?se...b_contents . Other folks may find it useful to do the same. Free membership requires only a user name and password. You can come and go on the article as you please. It's about 168 pages long but there is an abstract and an excellent table of contents that would let one "cherry pick".
The article supports Ex Patre Milligan in the strongest terms, and considers military trials of civilians an aberration. The author is concerned about the recent invocation of these few trials as precedent, supporting the legitimacy of more of them, the opinions of Brett Kavanaugh and Donald Trump not with standing.
Mike

[L Verge]

(01-15-2019 11:05 AM)GustD45 Wrote:  MIke, remember that decision you've cited came years after the Military Comission. In my opinion, Stanton did believe there was a larger plot involving the Confederacy which gave him the impetus to argue for a trial by Military Court. Was he wrong? I don't think he was. Stanton believed through the trial he would uncover a connection. Obviously one wasn't found nor did it prove one existed, but this does not mean he was trying to cover up anything. Edwin Stanton did what he thought was right under the existing circumstances.

I agree, even though I would prefer to have Milligan on my side today. There was no precedence for a crime of murder against a sitting President; there was still a war going on; certainly my first instinct as a citizen of the Union would be to blame it on the Confederacy (or at least some of its followers). Stanton was a very smart man, imo, whether you like his style or not. Put down this new problem as quickly as possible was the logical way to go.

My secondary thought is that perhaps the first assumption that it was a Confederate conspiracy was and has been correct all along. Yep, folks, this Southern lady is one of those who believes that theory to a good extent - even before Come Retribution was published. I don't carry the Confederate command's participation as far as the assassination, but as for a general conspiracy, you bet your tutu. By the fall of 1864, desperation would make me think of alternative measures.

And, we can carry this one step further - even if the conspiracy did not generate out of Richmond, we have some grounds to point to Maryland and its very upset planter class as willing to support anything that might turn the tide (or get revenge).

Those folks would include the Surratts, the Mudds, the underground movement, and thousands of citizens whose names we have never seen in print. These people would comprise the "enemy belligerents" that we need to consider, and in many respects may have been part of the "vicarious liability" component of conspiracy (which we have not mentioned here so far).

I'm sorry, but it just seems logical that, under such immediate and chaotic circumstances, a military court was what was needed.

[mike86002000]

Quote:
There was no precedence for a crime of murder against a sitting President
End Quote

Actually there was an attempted assassination of Andrew Jackson years earlier. The assassin was tried in a civilian court.

Mike

[RJNorton]

(01-15-2019 01:46 PM)mike86002000 Wrote:  Actually there was an attempted assassination of Andrew Jackson years earlier. The assassin was tried in a civilian court.

Mike

But, unless I am mistaken, there was no war going on at that time.

In 1863 Clement Vallandigham was tried by a military tribunal.

General Ambrose Burnside charged Vallandigham with the following crimes:

+++++++++++++++++++++++++++++++++

Publicly expressing, in violation of General Orders No. 38, from Head-quarters Department of Ohio, sympathy for those in arms against the Government of the United States, and declaring disloyal sentiments and opinions, with the object and purpose of weakening the power of the Government in its efforts to suppress an unlawful rebellion.

++++++++++++++++++++++++++++++++++

A military tribunal heard the case, and Vallandigham offered no serious defense against the charges. He contended that military courts had no jurisdiction over his case. The tribunal found Vallandigham guilty and sentenced him to remain in a United States prison for the remainder of the war.

Vallandigham's attorney, George Pugh, appealed the tribunal's decision to Humphrey Leavitt, a judge on the federal circuit court. Pugh, like his client, claimed that the military court did not have proper jurisdiction in this case and had violated Vallandigham's constitutional rights. Judge Leavitt rejected Vallandigham's argument. He agreed with General Burnside that military authority was necessary during a time of war to ensure that opponents to the United States Constitution would not succeed in overthrowing the Constitution and the rights that it guaranteed United States citizens.

http://www.ohiohistorycentral.org/w/Clem...llandigham

++++++++++++++++++++++++++++++++++++++++++

(Bold print above is mine)

It is my personal opinion that Judge Leavett was correct.

It is my personal opinion that when the Commander-in-Chief is assassinated in time of war a military tribunal is the proper method to try the people charged with conspiring with John W. Booth.

[GustD45]

(01-15-2019 01:46 PM)mike86002000 Wrote:  Quote:
There was no precedence for a crime of murder against a sitting President
End Quote

Actually there was an attempted assassination of Andrew Jackson years earlier. The assassin was tried in a civilian court.

Mike

Yes, that was an "attempt" on President Jackson what we are talking about is outright murder. Attempted murder and murder, under the law, is two very different things. Two very different burdens of proof.

[mike86002000]

(01-15-2019 11:32 AM)mike86002000 Wrote:  

(01-13-2019 03:59 PM)wpbinzel Wrote:  Hello, Another Mike. Welcome to the forum.
I know a little bit about the law and Ex Parte Milligan. See the March 2018 issue of the Columbia Law Review.

Mr. Binzel,
I'm in the process of reading the article you mentioned. Thanks for bringing it up. It is in Vol. 118, Issue 2, titled: "The Law (?) Of The Lincoln Assassination", by Martin Lederman. I'm becoming a fan of his. I see you and Laurie Verge are mentioned in the acknowledgements. You should be proud.
I had problems accessing the article using the URL Laurie provided, probably because of my browser, and found it on "myjstor" @:
https://www.jstor.org/stable/26371823?se...b_contents . Other folks may find it useful to do the same. Free membership requires only a user name and password. You can come and go on the article as you please. It's about 168 pages long but there is an abstract and an excellent table of contents that would let one "cherry pick".
The article supports Ex Patre Milligan in the strongest terms, and considers military trials of civilians an aberration. The author is concerned about the recent invocation of these few trials as precedent, supporting the legitimacy of more of them, the opinions of Brett Kavanaugh and Donald Trump not with standing.
Mike

I've finished a first reading of the Columbia Law Review article, on line. It took a snow storm, two pots of bean soup, and several hours.
I've ordered a paper copy of that issue of the law review, which I can copy, (for my own use), high light, and mark up. A serious student of the subject may want to do the same. I checked with the law review, it's in stock and the price remains $20. (They require a check, no credit cards.) That includes Fed Ex shipping. They need a physical address, not just a PO box, and a phone #.
https://columbialawreview.org/back-issues/ .

It's an especially fine article.

Mike

[RJNorton]

(01-18-2019 01:54 PM)mike86002000 Wrote:  It's an especially fine article.

Mike, the author of the article, Marty Lederman, is a member here. If you would like to read the posts he had made, there is a listing here.

[mike86002000]

(01-18-2019 02:55 PM)RJNorton Wrote:  

(01-18-2019 01:54 PM)mike86002000 Wrote:  It's an especially fine article.

Mike, the author of the article, Marty Lederman, is a member here. If you would like to read the posts he had made, there is a listing here.

Where?

[RJNorton]

If the link I posted above does not work, then here is the full URL:

https://rogerjnorton.com/LincolnDiscussi...f9e8cbe0d5