SURRATT HOUSE MUSEUM CURRENT EVENTS

Verdict in Dr. Mudd's Case Against the Army

Dr. Samuel A. Mudd treated John Wilkes Booth's broken leg early in the morning after the assassination of Abraham Lincoln and provided a place for him to rest until later that same day. For this involvement, Mudd was sentenced to life imprisonment in Fort Jefferson in the Dry Tortugas. Four years later, he was pardoned and released by President Andrew Johnson.

Mudd's grandson, Dr. Richard Mudd of Saginaw, Michigan, sued the Army in an effort to have the conviction overturned. He contends that Mudd, a civilian, should not have been tried by a military commission. In 1992, the Army Board for Correction of Military Records (ABCMR) questioned the jurisdiction of the military tribunal which tried Mudd, and recommended that the conviction be set aside. The Army disagreed with the recommendation. Dr. Mudd appealed.

On October 29, 1998, Federal Judge Paul L. Friedman issued a complex opinion in Dr. Richard Mudd's civil suit against the Secretary of the Army. Judge Friedman considered three counts in the suit:

  1. The first count sought review, under the Administrative Procedure Act, of Assistant Secretary Lister's 1992 decision refusing to vacate Dr. Mudd's conviction.

  2. The second count sought a writ of mandamus pursuant to the All Writs Act, directing the Secretary of the Army to adopt the recommendation of the ABCMR to order the Archivist of the United States, who is the custodian of the Hunter Commission's report of conviction (the 1865 Conspiracy Trial), to correct the records to reflect that Dr. Mudd's conviction has been set aside.

  3. The third count sought a Declaratory Judgment that "Dr. Samuel A. Mudd, M. D., was wrongfully convicted on or about June 30, 1865, of conspiring to assassinate President Abraham Lincoln in violation of the Fifth Amendment to the United States Constitution."
Judge Friedman dismissed Counts 2 and 3 for cause, which he explains in the opinion. With respect to the first count, Judge Friedman found that the Secretary of the Army's decision to reject the unanimous recommendation of the ABCMR was arbitrary and capricious and unsupported by substantial evidence in the record. Accordingly he ordered the case sent back to the Secretary to respond to certain legal points raised at the ABCMR hearing on January 22, 1992. Thus the case is back before the Secretary for reconsideration.

Contrary to some media accounts, JUDGE FRIEDMAN'S DECISION DID NOT TURN ON THE FACTS OF THE CASE NOR ON THE GUILT OR INNOCENCE OF DR. SAMUEL A. MUDD. It has only instructed the Secretary of the Army to consider and respond to certain legal points.

CASE OF DR. SAMUEL A. MUDD: A MANDAMUS ACTION (1/98)
Richard D. Mudd, M.D. v. Togo D. West, Jr., Secretary of the Army

In 1865 Dr. Samuel A. Mudd was convicted by a military commission of aiding/abetting John Wilkes Booth in the assassination of President Lincoln. He was sentenced to life in prison. President Andrew Johnson gave Dr. Mudd a full and absolute pardon on February 8, 1869. The Supreme Court has ruled in Ex parte Garland 1866 that such a pardon reaches both the punishment and the guilt.

In 1990 Dr. Samuel A. Mudd's grandson, Dr. Richard D. Mudd, filed a petition with the Army Board for Correction of Military Records to "correct" -- that is, reverse -- Dr. Samuel A. Mudd's conviction and expunge this conviction from the official records held in the National Archives. A hearing was held in the Pentagon on January 22, 1992, before the ABCMR. Only witnesses favorable to the Mudd position were allowed to testify. Subsequently the ABCMR recommended that the military commission lacked jurisdiction to try Dr. Mudd. The Secretary twice refused in written explanatory orders to adopt and carry out the ABCMR recommendation in this case.

Now Dr. Richard D. Mudd, under color of his family relationship, has filed suit against the Secretary of the Army in the Federal District court of Washington to compel the Secretary to adopt and carry out the ABCMR recommendations. The suit advances the novel legal theory that the Secretary has no choice but to agree with the position of the ABCMR, and that the Secretary's continued refusal to do so is arbitrary and capricious. Thus the suit is "...in the nature of mandamus to compel performance of duty."

To understand the background of this matter requires a review of the statue which authorized creation of the Army Board for Correction of Military Records (ABCMR), Title 10, Sec. 1552, together with the operating procedures set up pursuant to this statute, Army Regulations 15-185. The gut question to be answered is simple: Is the Secretary bound by the statute or the regulations to adopt and carry out a particular recommendation of the ABCMR? Put another way, is the ABCMR an autonomous agency within the Department of the Army, with power to act independent of the views of the Secretary?

The wording of the enabling statue, Title 10, Sec 1552, is in point. Paragraph (a)(1) reads in part:

"The Secretary of a military department may correct any military record of the Secretary's department when the Secretary considers it necessary to correct an error or remove an injustice...

This paragraph goes on to state that such corrections shall be made by the Secretary acting through boards of civilians set up in his department.

All this boils down to statutory authority for the Secretary to correct departmental records to fix errors or erase some injustice. The Secretary is not required by law to take any specific actions: what he decides to do is left to his discretion. To help him reach decisions, and for that purpose only, the statute provides for this board of civilians within his executive office.

Title 10, Sec. 1552, paragraph (a)(3) provides that the Secretary shall issue regulations, approved by the Secretary of Defense, for the purposes of the statute. Accordingly, Army Regulations 15-185 were published, effective April 1, 1997. These regulations created the Army Board for Correction of Military Records, set out the board's powers and operating procedures, and defined how the board's recommendations are to be treated by the Secretary in his official capacity.

It should be noted in AR 15-185, Sec. IV, paragraph 19(e)(1), that the Secretary delegated certain limited authority to the ABCMR. This delegation concerns primarily what might be called housekeeping problems such as leave, promotions, grades, awards, years of service, and the like. In any case where the ABCMR acts under this limited delegation from the Secretary, such action is deemed to be final.

In all other cases the proceedings of the ABCMR are to be forwarded to the Secretary, as provided in AR 15-185, Sec. VI, paragraph 20, who will then "...direct such action as he/she determines to be appropriate." In short, the Secretary has the discretionary power to adopt the ABCMR recommendation, adopt it in part, or deny it outright. Nowhere in the statue or the regulation is there any requirement that the Secretary adopt a particular ABCMR recommendation. It is clear throughout that the board is the Secretary's creature, having only the powers he delegated to it and none other. The Samuel A. Mudd case does not fall into any category of delegated powers.

Pursuant to AR 15-185 the Secretary has exercised his discretionary powers in the Mudd case and twice rejected an ABCMR recommendation for cause. The Secretary followed his own regulations with precision, and issued adequate and persuasive written explanations of his action in each instance.

Dr. Richard D. Mudd takes the novel legal position in his suit that the ABCMR is in effect operationally independent of the Secretary. And, where the Secretary refuses to carry out an ABCMR recommendation, a petition "...in the nature of mandamus" is a remedy which can be invoked in court to require the Secretary to conform to the Mudd version of what is right and proper. Anything other than the "correct" Mudd version must, according to the petition, be arbitrary and capricious.

Essentially, Dr. Richard D. Mudd has petitioned the court to issue a writ of mandamus to compel the Secretary to act when in fact the Secretary has already acted. It is just that Dr. Mudd does not like the way the Secretary has acted and he wants tHE court to order that changed to conform to his own views. In this, the petition completely ignores the fact that the law and the regulations in no way limit the Secretary's discretionary powers. The Secretary is required by the regulations to "...direct such action in each case as he/she determines to be appropriate." The Mudd petition would render these plain words meaningless.

This suit should not survive a motion to dismiss.

s/James O. Hall
January 20, 1998

Dr. Mudd Sues the Government (1/98)

Dr. Richard D. Mudd of Saginaw, Michigan has filed suit in the United States District Court for the District of Columbia. The suit includes a petition in the Nature of Mandamus to Compel Performance of Duty, a petition for Special Relief in the Nature of an Extraordinary Writ of Mandamus, and a petition for Declaratory Judgement of Unconstitutionality.

Defendants in this case are Secretary of the Army Togo D. West, Jr., Assistant Secretary of the Army Sara E. Lister, former Secretary of the Army Michael P. W. Stone, and Acting Assistant Secretary William D. Clark. Also served with papers were Col. David Carey, Chief of Litigation for the Department of the Army; The Honorable Janet Reno, Attorney General of the United States; and the Office of the United States Attorney for the District of Columbia.

This is a civil action seeking to force the defendants to adopt the 1992 recommendations of the Army Board for the Correction of Military Records. As background information: The ABCMR is neither a legislative nor judiciary group. It is an advisory board, composed of civil servants, which may be called upon to review routine matters pertaining to military records. In 1991-92, it agreed to review the legalities of Dr. Samuel Mudd's trial by a military commission. A presentation was made by representatives of the Mudd family. No one was invited to speak to the history of the government's position in 1865. The review board subsequently agreed that Dr. Mudd should have been tried in a civil court, that the commission denied Dr. Mudd his due process rights, and that his conviction should be set aside. This recommendation was subsequently declined by Acting Assistant Secretary of the Army William D. Clark on July 22, 1992. It was then appealed to then-Secretary of the Army Michael P. W. Stone. No action was taken. On February 2, 1996, Assistant Secretary Lister, presumably acting on delegation from Secretary Togo West, declined to set aside the decision by Mr Clark.

This new suit claims that all of the Secretaries "capriciously abused their discretion in failing to approve and adopt the unanimous findings of the ABCMR and in transmitting to the Archives of the United States an order to remove the record of conviction from the files of Samuel A. Mudd, MD." Historians, no doubt, will continue to contend that said conviction was successfully removed from the files of Samuel A. Mudd when President Andrew Johnson granted the doctor a full and unconditional pardon.

Update on Efforts to Exonerate Dr. Mudd (10/97)

The descendants of Dr. Samuel A. Mudd are continuing their efforts to have the government declare the doctor innocent of all wrongdoing. Representatives Steny Hoyer of Maryland and Thomas Ewing of Illinois have introduced a bill into the House of Representatives (H.R. 1885) which directs the Secretary of the Army to "...set aside the conviction of Dr. Samuel A. Mudd..for aiding, abetting, and assisting the conspirators who assassinated President Lincoln."

In 1869, President Andrew Johnson granted a full and unconditional pardon to Dr. Mudd. Such a pardon pertains to both the crime as well as the guilt. However, despite numerous legal set-backs, the family has fought on to challenge the legality of the military court which tried the Lincoln conspirators.

Several authorities in the field have objected to this latest political maneuver and are urging the Subcommittee on Military Personnel, which has been assigned H.R. 1885, to consider all the facts in the Mudd case. They are providing evidence of Dr. Mudd's anti-Lincoln, pro-slavery, and pro-Confederate stance based on the doctor's own writings, as well as evidence linking Mudd to Booth's original scheme to capture Lincoln; a scheme in which Confederate operatives hoped to seize Lincoln and hold him hostage. They have also pointed out that Mudd did not report Booth's presence in his home to federal authorities upon learning from them of the assassin's deed. Instead, Mudd returned to his home and assisted Booth in his escape.

All parties concerned are hoping for a final, definitive, and objective analysis of the Mudd issue. Some of the pros and cons of this debate can be found in letters to the editor of the Maryland Independent newspaper. Provided here are letters by Dr. James O. Hall, co-author of the book, Come Retribution, Mr. John E. McHale, Jr., author of the children's book Dr. Samuel A. Mudd and the Lincoln Assassination, and Dr. Edward Steers, Jr., author of the book, His Name is Still Mudd: The Case Against Dr. Samuel A. Mudd.

Exhuming the Body of John Wilkes Booth

On May 17, 1995, a hearing was begun in the Circuit Court for Baltimore City, Judge Joseph H. H. Kaplan presiding, to determine whether the body of John Wilkes Booth should be exhumed from Green Mount Cemetery in Baltimore. Petitioning to have the body exhumed were Lois W. Rathbun, Booth's great-great-grand niece, and Virginia Eleanor Humbrecht Kline who is Booth's first cousin, twice removed. These distant relatives sought the exhumation in order that the remains might be examined to determine whether the body in the grave actually is John Wilkes Booth.

Controversy over who is buried in Booth's grave dates back to 1903 when a man named David E. George committed suicide in Enid, Oklahoma. Before he died, George claimed that he was John Wilkes Booth and that someone else had been killed at Garrett's farm and buried in his place. George's claims were "confirmed" by Finis L. Bates, a lawyer who said that George confessed the same to him several years earlier. Bates wrote a book entitled The Escape and Suicide of John Wilkes Booth and exhibited George's mummified remains at carnival sideshows for years, thus keeping the rumor going.

Green Mount Cemetery opposed Booth's relatives' request for exhumation. Surratt Society members Steven G. Miller of Chicago, Dr. William Hanchett of San Diego, Michael Kauffman of Maryland, and Dr. Terry Alford and James O. Hall, both of Virginia, presented the documented history of Booth's capture and death. On May 26, Judge Kaplan ruled that the exhumation should not occur. He concluded that there was no compelling reason for an exhumation. This decision was based on the facts that:

(1) Green Mount Cemetery is not certain where John Wilkes Booth is buried, and there is evidence that three infant siblings are buried in a coffin on top of his remains. Exhumation would inappropriately disturb these individuals.

(2) Accurate identification of the body is not probable due to the length of time that has elapsed since Booth was buried; the effect that excessive water damage to the Booth burial plot would have had on his remains; and the lack of dental records by which to make the identification. Because there are no dental records, experimental "video superimposition" techniques would have to be used instead. DNA testing is not an option because a proper match cannot be expected from among Booth's relatives.

(3) The historical evidence that Booth was indeed killed at Garrett's farm is convincing. Numerous people, who were in a position to know Booth intimately, positively identified him during his escape, while he was at Garrett's farm, after he was shot, and at his reinternment in Green Mount Cemetery in 1869. Evidence offered in support of having the body exhumed includes the claims of two soldiers who said that Booth was not killed at Garrett's Farm. But these men were not even present when Booth was captured and killed. Furthermore, the escape/cover-up theory at the heart of the current case is based on Finis L. Bates' book. In 1920, this book was declared an outright fraud by investigators hired by Henry Ford to whom Bates was endeavoring to sell the David E. George mummy. And during the recent hearing, the book was described as unreliable by the Petitioners' own expert witness.

Judge Kaplan's ruling may not end the matter. According to the August 1995 edition of the Surratt Courier, a Petitioners' Notice of Appeal was filed in the Circuit Court for Baltimore City on June 21, 1995.

For additional background on this subject, see The Body in the Barn: The Controversy Over the Death of John Wilkes Booth which is a compilation of relevant articles that appeared in the Surratt Courier. The booklet can be ordered from the Surratt House Bookstore for $11.50 ppd. Also see Michael Kauffman's article in the May/June 1995 issue of "Civil War Times Illustrated" and his article in the December 3, 1994, edition of the "Washington Times."

Appeal to Exhume Booth's Body is Denied

On May 8, parties gathered at the Court of Special Appeals in Annapolis, Maryland, to continue the quest by collateral descendants of John Wilkes Booth to exhume his body from Green Mount Cemetery for analysis in hopes of furthering the theory that an imposter is buried in his grave. The appeal was mounted by their lawyer, Mark S. Zaid, who contends that there is still an historical controversy. In May, 1995, Judge H. H. Kaplan of the Baltimore Circuit Court had denied a request to exhume Booth's body after hearing historical experts testify to the overwhelming documentation of Booth's death at Garrett's Farm in Virginia on April 26, 1865.

This time, a three-judge panel heard the arguments by Zaid as well as by lawyer Francis J. Gorman, representing Green Mount Cemetery, which contends that there is no controversy. During the 40-minute hearing, Zaid fielded an aggressive battery of questions from the judges. Gorman based his case on the cemetery's right to carry out its fiduciary and contractual duty to protect the rights of the Booth family, chiefly the wishes of the matriarch, Mary Ann Booth, who expected the family's remains to rest in peace. As Gorman stated, "This is not a referendum; this is not a history class. This is a court of law, and the law is very clear about how final remains should be handled." Chief Judge C. J. Wilner questioned the historical evidence Zaid presented, calling it contradictory.

On June 4, the appeal was denied. The judges' opinion is that overwhelming evidence indicates that Booth did die at Garrett's Farm and was buried in Green Mount Cemetery in 1869 after being interred for four years in Washington, and that Green Mount Cemetery has every right to control the grave site to which Booth's body was entrusted by his mother.

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