American Brutus

by Michael W. Kauffman

  By modern standards, the trial was unmistakably slanted, but not because of the dictatorial whims of prosecutors. Criminal laws were different then, and they tended to favor the government. In 1865, a felony defendant was allowed a lawyer, but was not entitled to one, and the attorney was merely an adviser and could address the court only in a capital case. In a military trial, the rule was a little different. Here a defendant always had a lawyer, but sometimes the attorney was also the prosecutor. Strange as it sounds, judge advocates were required to represent both sides in any case where the defendant could not find a lawyer. Government officers were assumed to be impartial presenters of fact and were honor-bound to keep the process fair.14

  Generally, military trials were less friendly to the defense than their civilian equivalents. For one thing, they did not require the rigid “technical structures” demanded in civilian courts. If a civilian prosecutor omitted the word “feloniously” in an indictment, for example, he could not call for the death penalty, no matter how serious the offense. Every word counted. But military courts were more lax about such things, and Judge Holt took advantage of that in the charges he drew up in this case. Here, each defendant was charged with a single offense that seemed to mix everything from murder to concealment to lying in wait—and all of it done “maliciously, unlawfully, and traitorously.” In the words of Walter Cox, the charge “seems to have been intended . . . to fit every conceivable form of crime which the wickedness of man can devise.” Cox observed that the prosecutors “seem to have tasked their ingenuity to invent a new species of crime— traitorous murder, traitorous conspiracy, murder which is something more than murder, yet something less than treason—a hybrid between them, partaking of both. On the same principle, stealing a percussion cap, with intent to use it against the government, would be traitorous larceny, instead of petty larceny.”

  Thomas Ewing complained that what appeared to be a single charge was actually four separate crimes, and some of them could not possibly apply to his clients. He pressed Holt repeatedly to define the actual charge, but the judge advocate refused to be pinned down. He said he could not point to a specific statute under which the defendants were accused, but their acts were clear.

  What Holt did not say is that ambiguity made the military trial possible in the first place. Under the Habeas Corpus Act of 1863, Congress required the executive branch to turn all detainees over to civilian courts if their alleged offenses were covered under civilian law. Murder, conspiracy, and treason certainly fit that description, but a “traitorous conspiracy” did not.15

  Judge Holt had drawn up the indictments, but the rest of the process was in the commission’s hands. In a military trial, the judge advocate was only an adviser to the panel, and not “both judge and prosecutor,” as often claimed. Nevertheless, Holt had a tremendous amount of leverage, and he used it both ways. He sometimes supported the defense over the more intransigent Bingham. More often than not, though, he threw his weight to the prosecution side. On one occasion he even argued that the commission need not vote on every point of law; if Bingham had objected to something, that should be enough.

  The panel usually sided with Holt. Their leanings became apparent early in the trial, when the prosecutors asked to admit certain letters into evidence. One letter, said to have been written on April 15 by someone who identified himself only as “No. Five,” urged “John” not to lose his nerve in carrying out his part of the plot. Attacks on Sherman and Grant had yet to take place, but the writer had just attended a meeting with his fellow conspirators, and “all were bent on carrying out the programme to the letter.”

  Though the “No. Five” note was supposed to have been found floating in the water off North Carolina, it looked, in the words of Walter Cox, “no more blurred, I think, than any paper on this table.” Cox considered the letter a clumsy fabrication, and he could not see why anyone would consider it admissible. Thomas Ewing agreed. “In the first place,” he argued, “I really believe the letter to be fictitious, and to bear upon its face the evidence that it is so. In the second place, it is testimony that is wholly inadmissible under the plainest rules of evidence. . . . It is a declaration of some person whose existence nobody knows anything of—a nameless man.”

  Ewing conceded that such a document could be admitted if written by a conspirator, and John Bingham said that that was his point exactly. Bingham argued that even though the author of that letter was unknown, he must have been tied to Booth’s plot. His assertion brought a retort from O’Laughlen’s attorney. Walter Cox said, “The logic of my learned friend on the other side seems to be this: It is sufficiently established, at least by prima facie evidence before the Court, that Booth was engaged in a conspiracy with some unknown persons; this letter comes from an unknown person; ergo, it is a letter from somebody connected with Booth in this conspiracy. . . . I submit to the Court that this is chop logic.”

  Nevertheless, Bingham insisted that the author was a conspirator—“a fact clearly enough shown, I think, to hang him if he were found with that paper in his pocket, though no man knew his name, and no man ever testified about the writer. . . .” The defense put up a vigorous argument, but Holt sided with Bingham, and the letter was admitted.16

  One might suppose that if the commission sided with Bingham on the letter controversy, they were probably disposed to support him in anything. Indeed, that was the conclusion of historian Otto Eisenschiml, who once counted up the objections raised, then tabulated the number decided in favor of each side. By that scorecard, the trial was manifestly one-sided. But in fact, such rulings make an especially poor measure of this trial. Many of the objections raised by Frederick Aiken, the attorney for Mary Surratt, would have been overruled in any court. Aiken was not an experienced lawyer. He did not understand the rules of evidence, and his frequent missteps played as heavily against his client as anything the commission decided. He rarely came prepared and often failed to anticipate what his own witnesses would say. For example, he insisted on defending the loyalty of Mary Surratt’s brother, Zadock Jenkins, by showing that Jenkins had flown an American flag in defiance of his secessionist neighbors. But none of his own witnesses would confirm that. When he put Jenkins himself on the stand, he asked how much money he had spent in support of the Union. Jenkins said that he couldn’t recall spending anything.

  Aiken’s strategy always seemed to backfire. He tried to get John Holohan to establish an alibi for Mary Surratt, but the witness wouldn’t cooperate. Holohan testified that he saw Mrs. Surratt at home, and Aiken asked whether she might actually have been at church. “Mr. Aiken, you know me very well,” said the witness. “Well enough to know that I am not a man to tell an untruth. . . . I have told you that I saw Mrs. Surratt there that morning, and she could not have been at church if she was there.”

  Perhaps Aiken’s worst blunder was calling Augustus Howell to the stand. Howell was defiant, evasive, and inordinately proud of his opposition to the Yankees. His testimony was intended to cast suspicion on Weichmann, whom he had taught to use a Confederate cipher machine, but it only called attention to the fact that Howell himself knew how to use the device. The machine in question was identical to the one found in Judah Benjamin’s office after the evacuation of Richmond. Everyone in the room knew that Howell was a Confederate spy, and the fact that he was captured in Mary Surratt’s tavern could not have done much good for her defense.

  Frederick Aiken was painfully aware of his inexperience, and the prosecution would not let him forget it. Occasionally Joseph Holt offered him advice, but John Bingham was brutal. He openly ridiculed Aiken, expressed contempt for him, and publicly lectured him on his inadequacies as a lawyer. He even got Burnett to join in. Once, when Aiken asked for leeway, he reminded the commission that he had not objected as often as he could have. Burnett lashed out. “It is certainly a very weak argument for counsel to say that he permitted illegitimate matter, and therefore that illegitimate matter should be permitted for him. It is his duty, unde
r his oath, to see that his client has the rights of law, and it is an admission that I certainly would not make to this Court, that I had not maintained the rights of my client. He is to blame, and no one else, if such has been the case. . . .”

  In an exchange with Lew Wallace, Aiken admitted that the process was not at fault. The general said, “I understood the object of the counsel to be, to impeach not only the witness for the government, but also the fairness of the Court.” To this, Aiken replied, “No, sir; only the witness; not the fairness of the Court at all. I have no reason to complain of that. None of us have had.”17

  Aiken knew enough to see how the odds were stacked against him. He understood that the prosecution’s real leverage came from its ability to make its own rules. Because military commissions were not subject to judicial appeal, they were not legally bound to follow the common-law rules of procedure. That gave Joseph Holt and associates the luxury of relying instead on the “laws of war.” They refused to define the term, but it probably referred to a common understanding of what constituted proper conduct in warfare. It was a new form of jurisprudence—fluid, unwritten, and in short, anything Joseph Holt wanted it to be. Walter Cox could not resist giving it a verbal jab.

  “What a convenient instrument for trampling upon every constitutional guaranty, every sacred right of the citizen!” said Cox. “There is no invention too monstrous, no punishment too cruel to find authority and sanction in such a common law. Is it possible that American citizens can be judged and punished by an unwritten code that has no definitions, no books, no judges or lawyers; which, if it has any existence, like the laws of the Roman Emperor, is hung up too high to be read?”

  What Cox and the others did not know was that earlier in the year, the Bureau of Military Justice had published a set of guidelines based on the rules Holt himself had laid down for his subordinates. The Digest of Opinions of the Judge Advocate General of the Army was intended to serve as a guide for judge advocates in the field. Few people knew anything about it, and Holt appears to have wanted it that way. He did not want his own book to become a straitjacket.18

  Any discussion of fairness would have to include mention of the rule on “defendant declarations.” At common law, the words of a defendant were admissible only if he uttered them during the commission of the crime; anything said after the fact or later, in his own defense, was excluded. The rule benefited the prosecution exclusively, and in this case, it kept out some intriguing items: the interrogations of Mary Surratt, the confessions of Atzerodt and Herold, and the diary of John Wilkes Booth. Historians have often questioned the “suppression” of these items, but in fact, they would not have been allowed in any court at that time.

  Formal statements made by the accused to government officials were not completely excluded, but they could be introduced only by the prosecution. Because those officials could hardly be expected to recite a defendant’s full statement from memory, what the court actually heard was an edited or paraphrased version of it. This put defendants at the mercy of people who, generally, were hostile to their defense. As John A. Bingham explained, there was a reason for such a rule. “Those who are charged with crime,” said Bingham, “are never permitted on their own motion to prove their random declarations to third persons, because if it were so, the greatest criminal that ever cursed the earth and disgraced our common humanity could make an abundant amount of testimony out of the mouth of the most truthful people on the planet.”

  The rule was as well known in 1865 as “You have the right to remain silent . . .” is today, and John Wilkes Booth had relied heavily on it to protect himself from eventual exposure. He knew that anything he said could someday be brought into court by a third party, and anyone incriminated by his words would probably be excluded from responding. Thus, if Booth considered someone a potential threat, he could neutralize him by making him look guilty and thus unable to testify against him. All he had to do was tell or show a third-party witness that the person in question had been on intimate terms with him. It was accusation by innuendo, and it had been Booth’s most potent threat against those he needed to silence. He used it on conspirators, witnesses, and anyone else he didn’t trust. This, more than anything else, allowed Booth to organize a plot in the most paranoid of times.19

  Judge Holt knew how to use such rules to his advantage, and he did just that in the case against Dr. Mudd. Government witnesses claimed that Mudd had been uncooperative in the week following the assassination, and Detectives Lloyd, Lovett, and Gavacan all implied that the doctor’s omissions were more incriminating than anything he actually said. This, in fact, was behind Stanton’s decision to prosecute Mudd in the first place. But when General Ewing tried to address the issue, he ran into a road-block. Ewing tried to show that it was Mudd who reported Booth’s visit to authorities in the first place, and that Lieutenant Dana, to whom the information was passed, simply ignored the report. Since Mudd was charged with concealment, he said, his “declaration” was made during the commission of that alleged crime. But at this point, Holt invoked the “defendant declaration” rule. He insisted that Mudd’s crime ended when Booth left his farm on Saturday, and any report he made subsequent to that was considered to be after the fact, and hence inadmissible.

  But much of what Dr. Mudd said during the week was entered into the record. It came through the testimony of Col. Henry H. Wells. According to Wells, Mudd admitted that he had recognized Booth while he was still at his farm, and yet he harbored him anyway. That was a damaging admission. But even though nothing of the sort appeared in Mudd’s sworn statement, or in the one Wells had written for him, that was beside the point. Legally, only the colonel could tell the story. His unsupported memory went on the record, while the law excluded the words Mudd was actually known to have used. It was an especially hard pill to swallow because Wells was so careless; on important issues, he used equivocal expressions (“I think” or “if I am not mistaken”) at least thirty-five times.20

  By the laws of criminal procedure, the prosecutors set the limits of the case, and defense attorneys were strictly forbidden to venture outside those lines. Thus, when Sam Chester testified that Booth wanted “someone connected or acquainted with [Ford’s] theater” to be in his plot, he bolstered suspicions against Spangler, the only defendant who was actually employed there. Spangler’s attorney, Thomas Ewing, tried to respond by showing that Booth actually had no preference, having scoped out Grover’s Theatre just as carefully as Ford’s. But the point was not allowed. The prosecution had never mentioned Grover’s Theatre, and the defense could not introduce it on their own.

  The reactive role of the defense put all the cards—and the evidence— in the hands of prosecutors. Because the defense could introduce nothing, except in rebuttal, they could not argue that prosecutors got the wrong person, that their witnesses had been mistaken, or that detectives had failed to follow up on more promising leads. Information on such things would only be found in prosecutors’ files, and in 1865, the government was not required to disclose anything of that nature. In fact, government agents actively thwarted Frederick Aiken when he tried to investigate on his own. George Cottingham told Aiken something in private, but something else under oath. On the stand, he openly admitted lying. As he explained, he did not think a defense attorney had any business talking to him in the first place. 21

  It is not hard to see how full disclosure might have hurt the government’s case. Witnesses changed their stories, misquoted their sources, and gave details in their sworn testimony that were strangely missing in the pretrial investigation. In the case of Dr. Mudd, detectives’ memoranda contradicted one another on key points, and an item in government files— an envelope with lines drawn on it—might have helped corroborate the defendant’s story that Booth had drawn such a map as they talked together in his hotel room.

  Government files could have been damaging to two of their most important witnesses, John M. Lloyd and Louis Weichmann. Everyone knew that Lloyd had hidden Bo
oth’s weapons, then retrieved them on the night of the shooting. But what the defense didn’t know was that he had thwarted the pursuit for several days. Most detectives considered Lloyd a conspirator, and were outraged that he had not been prosecuted. Some even claimed a share in the reward money based on having arrested him.22

  Lou Weichmann was even more vulnerable. Fellow clerks in the War Department had insisted that Weichmann was a Southern sympathizer, and Judge Holt had every reason to believe he was actively working for the other side. Augustus Howell said so explicitly. “Weichmann . . . gave me information and said it came from his Books in his office,” Howell wrote. “Not only that—he obtained his office in the war department with the express understanding with Surratt that he W___ was to furnish Surratt with all information that came under his notice from time to time to be transmitted South—and he did furnish it.”

  Almost to a man, government investigators felt that Weichmann had played some part in the conspiracy. As Col. John A. Foster put it: “It seems extremely improbable that Weichmann was ignorant of the entire plot, if he was not an accomplice. . . .” Even though Stanton never wavered on his decision to spare Weichmann, he could not afford to let him get complacent. Weichmann was often reminded of how close the decision was, and those reminders sounded just like threats. In a pretrial letter to Burnett, Weichmann offered information that he had been unable to recall at his last interrogation. “You confused and terrified me so much yesterday,” he said, “that I was almost unable to say anything.” Yet the witness denied under oath that he had been influenced by fear, and the defense had no right to see this evidence to the contrary.