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Editor’s Note: This is the conclusion of a two-part series. Today, it is hard to imagine the intensity of the public’s shock, grief, and outrage over the assassination of Abraham Lincoln. Robert E. Lee had surrendered on Palm Sunday. The terrible civil strife was virtually over, although more than half a million soldiers from both sides had died in four years of war. More than any other man, Lincoln was responsible for the victory. He was also the hope for the future. On Good Friday, he was murdered. It was the crime of the century. Below concludes James H. Johnston’s account of the trial of the Lincoln conspirators. In the first installment, readers learned that on May 1, 1865, less than a month after Lincoln’s slaying and the subsequent death of his killer, John Wilkes Booth, President Andrew Johnson ordered the War Department to establish a military commission, made up of nine Union officers and chaired by Gen. David Hunter to try the eight other alleged conspirators. After the first day of trial, the eight accused of conspiring to assassinate Abraham Lincoln, William Seward, Andrew Johnson, and Ulysses S. Grant had the hoods removed from their heads while they were in the courtroom, but this did nothing to brighten their prospects. The verdict was a foregone conclusion. The only question was who would be executed. Defense counsel seemed as convinced of their clients’ guilt as the tribunal did. Few lawyers in Washington had wanted to represent the accused assassins, and several defendants did not have counsel when the trial started. Lawyers for other defendants agreed to represent these defendants since the military commission apparently was prepared to proceed in any event. None of the lawyers was able to meet with his client before the trial, and any conversation with a client had to take place in the courtroom. The atmosphere was intimidating, to say the least. Mary Surratt was fortunate to get the distinguished Sen. Reverdy Johnson of Maryland to represent her as lead attorney. Reverdy, a former attorney general, had been a pallbearer at Lincoln’s funeral. But the senator did not know the details of the case. He made the mistake of using cross-examination to educate himself and in so doing clarified the prosecution’s case. Johnson’s main contribution was his attack on the military commission’s jurisdiction. He left most of the trial work to his undistinguished associates. Gen. Thomas Ewing represented Samuel Mudd, Samuel Arnold, and Ned Spangler. Ewing took the case knowing that such a high-profile defense would help his postwar law practice. He may also have seen it as a chance to embarrass Secretary of War Edwin Stanton, who was in a bitter feud with Ewing’s brother-in-law, war hero Gen. William Sherman. Ewing had not been known previously as a criminal lawyer. Col. William Doster represented both Lewis Payne and George Atzerodt. This worked to Atzerodt’s disadvantage. As a co-conspirator, he was legally responsible for the actions of Booth, Payne, and David Herold in furtherance of the conspiracy, but unlike them, he was a coward. Doster attempted to argue this, sarcastically describing Atzerodt in his closing argument as “the same fleet-footed Quaker, famous in Port Tobacco [Md.] for jumping out of windows in barroom fights.” But Doster’s words could hardly overcome appearances in the courtroom with Atzerodt being represented by the same lawyer as the huge Payne, whom a reporter in attendance at the trial described as “the lion of the prisoners’ dock” and “the only one of the conspirators who had the pluck to carry out the bloody task assigned him.” Professor Thomas Reed Turner in his book, “Beware the People Weeping: Public Opinion and the Assassination of Abraham Lincoln,” writes: “[C]ontemporaries seemed to feel that most of the defense counsel were doing little more than going through the motions. William Doster commented that there were no chances at all for acquittal of his clients Atzerodt and Payne. Herold’s defense was not even read by his attorney, Stone, who was out of the city, but by the court reporter James Murphy. [Prosecutor] H.L. Burnett felt that “some of the counsel for the accused seemed to be as convinced as the court of the guilty participation of the rebel authorities.” The defendants’ lawyers were not, in short, the best the bar had to offer. Turner quotes this description of the defense lawyers by a newspaper correspondent who covered the trial: “They either have no chance or no pluck to assert the dignity of their profession.” Frederick Aiken’s incomprehensibly flowery closing argument for Surratt, as recorded by the court reporter Benn Pitman, illustrates his lack of conviction: “Let not this first State tribunal in our country’s history, which involves a woman’s name, be blazoned before the world with the harsh tints of intolerance, which permits injustice. But as the benignant heart and kindly judging mind of the world-lamented victim of a crime which wound, in its ramifications of woe, around so many fates, would himself have counseled you, let the heralds of Peace and Charity, with their wool-bound staves, follow the fasces and axes of Judgment and Law, and without the sacrifice of any innocent Iphigenia, let the ship of State launch with dignity of unstained sails into the unruffled sea of Union and Prosperity.” That the trial might have come out differently if defendants had been more capable, aggressive counsel is speculation. An observer at the trial, after noting that Gen. David Hunter “has not been highly successful as a military commander,” sarcastically wrote, “He listens with manifest impatience to the occasionally interposed objections of the prisoners’ counsel, and invariably overrules them as quickly and gruffly as he would order a battery forward in the crisis of a losing battle.” The observer went on to say that Surratt’s lawyer, Reverdy Johnson, “seems more than any of his colleagues to chafe at the arbitrary rulings of the court, and often has hard work to keep his temper.” An unsigned article in the Army Navy Journal after the trial placed blame equally on defense counsel and tribunal: “We should have preferred to see an abler trial put on record. … The defence seems to have been wretchedly conducted for the most part. … The Court does not seem to have taken a great deal of interest in the identical prisoners at the bar, after the first few days. … The conduct during the Rebellion of Davis, Lee, Beauregard, Sanders, Clay, &c., was the subject chiefly interesting to the court.” The defendants might have counted themselves lucky to have counsel at all because the commission started by taking testimony in secret with not even defendants present. The purpose of this was to show that the assassination was the work of a conspiracy that reached the highest levels in the Confederacy. Stanton did not want such explosive evidence made public. The testimony, however, fell short. Henry Von Steinacker testified in secret that he met a sick Confederate soldier, possibly Booth, retreating from the Battle of Gettysburg almost two years earlier who told him: “Old Abe Lincoln must go up the spout.” The military commission accepted the statement without bothering to discover that John Wilkes Booth was performing Shakespeare in Cleveland during the Battle of Gettysburg. It was Grant who caused the commission to abandon secrecy. He had been called as a witness on May 12 to establish the fact that the District of Columbia was under martial law. Reporters corralled him outside the courtroom to complain about their exclusion. Grant had them follow him back to the White House and talk to President Johnson. Commission proceedings were opened to the press and public the next day. The charge of Confederate complicity raised issues beyond the ken of the pathetic group of conspirators that Booth had stitched together. The commission heard testimony that Booth was linked to Confederate operatives in Canada as well as testimony about secret ciphers, a plan to spread yellow fever through the water supply, and the atrocious treatment of Union soldiers held in the infamous Confederate prison at Andersonville, Ga. The prejudicial nature of this testimony, much of which was unchallenged hearsay, was unwittingly captured by The Boston Evening Transcript, which wrote approvingly: “It is now abundantly proved that a court confined within strictly legal bounds, and never travelling out of the narrow limits of merely technical investigation, could not have developed the full extent of the hideous plot.” Not all the defects in the trial can be blamed on Stanton or his decision to resort to court-martial. The rules of criminal evidence in both military and civil courts at the time barred defendants from taking the stand in their own defense. The rationale was, among other things, that defendants would lie anyway if they were guilty. This presented problems for counsel who wanted their clients to testify. The evidence against Payne, Herold, and Atzerodt was so strong that they had nothing to lose by testifying. Doster was able to read into the record a statement by Atzerodt. It was an admission of participation in the kidnapping plots, but not the assassination one, and was intended to reinforce his image as a coward. However, since it was not delivered by Atzerodt, the commission got no sense of the man. Besides, there was no way for the commission members to judge Atzerodt’s claim that he was not privy to Booth’s assassination plan without hearing from Atzerodt or from any of the other conspirators. Doster tried to get Payne on the witness stand by arguing that he was insane. If a proper foundation were laid, a defendant could then take the stand in order for the jury to see for itself the alleged insanity. The commission allowed Payne to be examined by a military doctor to lay the foundation for the defense. The doctor testified: “I discovered a remarkable lack of symmetry in the two sides of his head. The left is much more developed than the right. … I could not discover there was any sign of insanity.” Doster would later say that Payne couldn’t tell right from wrong and that the military was afraid to have him examined by civilian doctors who made insanity a specialty. Mary Surratt might have benefited the most by taking the stand. The damning evidence against her was that she had made two trips from her boarding house in Washington to her tavern in Surrattsville, Md., the week of the assassination. Such trips took two hours each way. John Lloyd, the tavern operator, testified that Herold, Atzerodt, and John Surratt had visited him a month earlier and that John Surratt had given him two carbines and ammunition to hide. Lloyd testified that Mrs. Surratt came out on Tuesday April 11 and asked about “shooting irons.” Another witness said he saw Surratt talking to Booth on the afternoon of Friday, April 14. Booth would have known by then that Lincoln would visit the theater. Mrs. Surratt then made the ride to the tavern. Lloyd, whose memory may have been clouded by the alcohol he allegedly had been drinking all day, remembered that when Surratt got to the tavern in late afternoon, she asked again if the “shooting irons” were ready. She returned to Washington that night. After the assassination, Booth and Herold rode to the tavern and retrieved the ammunition and one of the carbines from Lloyd. This evidence made it appear that Mrs. Surratt knew what Booth had in mind on April 14. Thus, Surratt might have decided to risk taking the stand to explain it away. As events would prove, there would have been no harm in trying. The commission heard closing arguments and retired to deliberate on June 29. It announced its verdict the next day. Payne, Atzerodt, Herold, and Surratt were found guilty of conspiracy to murder President Lincoln and to attempt to murder Seward, Johnson, and Grant. They were sentenced to be hanged a week later on July 7. Mudd was saved from the death sentence because a vote by two-thirds of the nine commission members was required for death. Only five of the required six thought Mudd should die. And so, he, Arnold, Michael O’Laughlin, and Spangler were convicted of lesser crimes and given prison sentences. In addition to the verdicts and sentences, five commission members, including Hunter, voted to recommend clemency for Mary Surratt because she was older than the others and a woman. Unfortunately for Surratt, the clemency recommendation was not made public, but rather was to be communicated privately to President Johnson. Stanton and Judge Advocate Joseph Holt later claimed they sent the paperwork to the White House, but the president claimed that he never saw it, and he ignored clemency appeals from others on Surratt’s behalf. Separately, Surratt’s lawyers obtained a writ of habeus corpus from the civilian court in the District of Columbia on the morning of July 7, but Attorney General James Speed returned the writ to the court with an endorsement by President Johnson that habeus corpus was suspended in Washington. The four condemned were led to the gallows in the yard of Old Arsenal Penitentiary at 1:15 p.m., July 7, 1865. The temperature had reached 90 degrees well before noon. Two umbrellas provided shade while veils were put over the prisoners’ heads and their arms and legs were bound. A soldier standing on the platform next to Surratt became nauseated and vomited. She complained that the bindings hurt her arms, but, according to some reports, the hangman responded in true gallows humor by saying they wouldn’t hurt for long. Surratt became the first woman put to death by the United States. Atzerodt inched away from the edge of the platform, apparently unaware that the whole platform would fall away. Newspaper accounts agree that Surratt and Atzerodt appeared to die quickly, although The Washington Star reported Surratt’s limbs moved slightly after the fall. The Star reporter wrote: “Payne’s limbs were drawn up several times, and for a moment or two his whole frame quivered violently but within five minutes all was still. Herold struggled some.” The New York Times reporter wrote: Payne and Herold “writhed in apparent agony, the first for about two minutes, and the latter for about five minutes.” Ten minutes later, doctors declared all four prisoners dead. According to The Star, doctors said that Surratt’s neck definitely had been broken and Atzerodt’s probably had been, too, but they couldn’t tell about Payne and Herold. The Times was more considerate of its readers’ sensibilities and reported the surgeons “state that the necks of each were broken instantly.” The bodies were taken down and buried in the prison yard. The hangman cut up the ropes and the gallows and sold pieces as souvenirs. The crowd that had gathered outside Old Arsenal Penitentiary munched on cakes and sipped on lemonade from street vendors until late in the afternoon. In 1867, John Surratt, Mary’s son, was found, arrested, and charged in civilian court with participation in the conspiracy. He had first-rate counsel and a full and fair trial. Surratt seemed at least as complicit in the kidnapping plots as Arnold and O’Laughlin, but the prosecution persisted in trying to establish that Surratt was in Washington on the day of the assassination. Surratt’s lawyers seized on this as an opportunity to discredit the whole case against their client and proved that he was in Elmira, N.Y., on that day. The jury acquitted John Surratt. Although the military commission sentenced Arnold, Mudd, O’Laughlin, and Spangler to prison in Albany, N.Y., Stanton perversely ordered them to the Dry Tortugas Prison off Key West, Fla. When yellow fever broke out there, O’Laughlin contracted it and died. The prison’s doctor died, too, and Dr. Mudd volunteered to render medical care to both guards and prisoners. Appreciative prison officers recommended that Mudd be pardoned. In February 1869, President Johnson pardoned Mudd as well as Arnold and Spangler before leaving office. After John Surratt’s acquittal, The New York Times carried an article comparing the trial of the eight conspirators in 1865 with John Surratt’s trial in 1867: “[In 1865], the Government, availing itself of the existing state of war, cited the criminals before a Military Commission, which, while respecting their rights, refused all delays and brushed aside the fictions and technicalities usual and useful in common cases, letting in every ray of light from any quarter upon motives and persons, and scanning the widest range of circumstances. … [In 1867], John Surratt was called to his account in a calmer state of the public mind, after time had appeased its righteous anger and the passion for retribution had been allayed.” Debate has swirled around the assassination and trial ever since. One reason is that over the years historians and writers have had far more time to examine the evidence in the case than defense counsel did in 1865. Another reason is that almost from the moment the trial ended, new evidence began to surface, which, though never dispositive, was evidence the military commission did not hear. But the third and most disturbing reason is that those who consider the facts without the emotions and pressures felt by the military officers on the commission often reach a different conclusion. Still, historians and writers generally believe that justice was served, albeit roughly, that all eight defendants were probably guilty of something, and that, except for Mary Surratt and the secret clemency recommendation, their fate would have been the same had they been tried in civilian court. At the time, the enormity of the crime and the passion of the moment resulted in abrogation of the usual rules of law. And so, the defendants were denied a full, fair, and public trial by a jury of their peers. Many who have studied the case argue that the eight accused were probably guilty, but the disquieting question is whether a jury would have found all of them guilty beyond a reasonable doubt. That question can never be answered. The lesson is clear, however: Beware the people weeping when they bare the iron hand. Washington, D.C., lawyer James H. Johnston is a writer and a frequent contributor to Legal Times . He may be contacted at [email protected]

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