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Case of Dr. Mudd could put to rest question of military trials for civilians

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By ROBYN E. BLUMNER

© St. Petersburg Times
published June 23, 2002


Had it not been for a recent dinner conversation, the obituary in the New York Times would have passed without notice: Dr. Richard Mudd, 101, Dies; Grandfather Treated Booth.

Mudd died May 21. He was a third-generation doctor who spent his life trying to erase the conviction of his grandfather, Dr. Samuel Mudd, for being part of the plot to assassinate Abraham Lincoln. Samuel Mudd's crime was that he set the broken leg of John Wilkes Booth the night of Lincoln's assassination after Booth and accomplice David Herold arrived at his Maryland tobacco farm.

Just a few weeks earlier, I happened to be seated next to Candida Steel at a banquet in Washington, D.C. She is the great-great granddaughter of the defense attorney for Samuel Mudd at the time of the Lincoln assassination trial. Steel is the chief administrative judge of the U.S. Department of the Interior Board of Contract Appeals, but up until her appointment, she had been representing Richard Mudd in an effort to help him clear his grandfather's name.

What is fascinating about the Steel-Mudd connection, beyond the impressive historical intersections, is the relevance of the issues they are raising. Dr. Samuel Mudd was tried and convicted before a military tribunal, and his conviction is being challenged by his ancestors on the grounds that it had no jurisdiction over an American civilian as long as the nation's civil courts were operational.

While President Bush so far has sidestepped the issue by specifically excluding citizens from the reach of his military tribunal, the possibility down the road threatens like a ready cudgel. Already, two American citizens accused of aiding the enemy, Yaser Esam Hamdi and Jose Padilla, are being held indefinitely and without charge as the military ponders what to do with them.

The case of Mudd vs. Secretary of the Army, which will be heard by the D.C. Circuit of the U.S. Court of Appeals in September, may bring some clarity to whether American civilians can be subject to military authority for crimes on U.S. soil.

The road to redemption for country doctor Samuel Mudd has been bumpy to say the least. Mudd claimed he didn't know whom he was treating that night, since the famous actor was wearing a fake beard. Mudd also hadn't yet heard of Lincoln's assassination.

At Mudd's 1865 military trial, he was tried along with seven other alleged conspirators and was convicted of conspiracy to murder the president. He received a life sentence and was sent to the Dry Tortugas to serve it. But after four years, Mudd was pardoned by President Andrew Johnson and allowed to return home. In the reprieve, the president noted concerns about Mudd's guilt and also his service in tending to people on the island who were stricken with yellow fever.

After Dr. Richard Mudd discovered his family history, he made it his life's work to clear his grandfather's name -- not only to absolve Samuel Mudd of guilt but to question the legitimacy of his conviction by military tribunal.

In 1992, the Army Board for Correction of Military Records actually recommended that Mudd's conviction be overturned because he was denied his right to be tried before a jury of his civilian peers. Unfortunately, the reasoning didn't persuade the secretary of the Army, who refused to go along.

The Mudd family now finds itself in front of a federal appellate court asking a question that has far more currency than it did a mere 10 months ago: Should American civilians who are not soldiers in a rebellion army be subject to military law? Both the Clinton and Bush administrations have vigorously argued for upholding military jurisdiction. It is clearly in the executive branch's interest -- and clearly against the people's interest -- for it to be able to bypass civilian courts at its own say-so.

This runaway authority was the focus of a 1946 U.S. Supreme Court case in which two civilians in Hawaii were tried and convicted by military tribunals in the wake of Pearl Harbor, one for embezzling stock and another for fighting with a Marine. The Supreme Court set aside their convictions, saying "military trials of civilians charged with crime . . . (are) obviously contrary to our political traditions and our institution of jury trials."

If military authorities are allowed to decide whether an American will be brought before a tribunal rather than a civil court, as the government claims in the Mudd case, then civil society and the Constitution are subordinated to military judgment. Our founders fought a revolution to escape this form of justice.

Samuel Mudd has waited 137 years for his day in court. Now, if the courts are wise, his plight might become an important precedent that keeps the military from operating without constraint on domestic soil.

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