American Brutus

by Michael W. Kauffman

  The common complaint about Weichmann was not that he lied outright, but that he bent the facts. He was challenged and contradicted often, but his testimony actually falls apart only once, when he claimed to have spoken with a colleague about an article he had just read in the New York Tribune of March 19, 1865. In fact, that article was published in 1864. It was written by the government witness Sandford Conover, and Weichmann’s false recollection of reading it suggests that the information had come to him, directly or indirectly, through the author.23

  One item might have compromised Weichmann beyond repair, had the War Department been required to let the defense see it. It was a letter dated February 15 from a woman who signed herself “Clara.” This gushing and gossipy note refers to John Surratt’s travels as if Weichmann knew all about them. The author asks Weichmann how he enjoyed his January trip to Baltimore—the one on which Surratt abandoned him at the Maltby House. Certainly, “Clara” was privy to some personal secrets, such as Weichmann’s bisexuality and his unrequited love for Anna Surratt. More to the point, though, she was a Confederate insider, and her letter strongly implies that the prosecution’s star witness was one as well. Had the defense known of it, they might have neutralized Lou Weichmann’s effectiveness on the stand.24

  Discovery laws could have made a world of difference in the trial. With access to the War Department files, defense attorneys might have uncovered the fact that at least once, Joseph Holt presented evidence he knew to be fraudulent. Specifically, it was a letter addressed to “J.W.B.” and purportedly sent on April 6 to the National Hotel. It discussed the assassination, the “oil speculation,” and an alternate plan of escape. When the letter was brought to Holt’s attention, he noted the western Maryland postmark and sent detectives there to investigate. They quickly determined that the letter was a fraud; its author was a man named Robert Purdy, who had written it to implicate a neighbor, Leonidas McAleer. Other investigators reached the same conclusion, but the judge advocate endorsed the letter anyway, and allowed Purdy to validate it on the stand. At the same time, he had McAleer arrested and held without charges until the end of the trial.

  HIGH-PROFILE CASES ALWAYS attract eccentrics, and this one had more than its share. Take, for example, Rev. William Evans. A Presbyterian minister and self-styled detective, the Reverend Mr. Evans said he felt a moral obligation to support the government. He claimed to have seen Dr. Mudd riding into Washington, and later going into the Surratt boardinghouse. But on cross-examination, Evans could only guess what the house looked like and where it was located. He guessed wrong. He offered conflicting stories to explain how he knew it was the right place, and though he had suggested his journals would help him fix the date, he retreated from that position instantly when the defense suggested he bring them in. Every material part of Evans’s testimony was shown to be false. As General Ewing told the commission, “In his reckless zeal as a detective, he forgot the ninth commandment, and bore false witness against his neighbor.”25

  We may never know the extent to which people swore falsely in the conspiracy trial, but it happened often enough to throw the entire process into question. It was not a one-sided phenomenon. Though John Nothey testified that he owed money to Mary Surratt (thus supporting her reason for the April 14 trip to Surrattsville), a subsequent proceeding by the Prince George’s County courts determined that the Surratts owed Nothey, and not the other way around. Did Nothey, a poor, illiterate farmer, succumb to local pressure in giving testimony, or did the courts get it wrong?26

  It was not the process but the press that exposed the most egregious examples of perjury. Dr. James B. Merritt, Richard Montgomery, and Sandford Conover testified on the involvement of Confederate officials, and their secret testimony was not released to the public until Benn Pitman’s wife gave it to the Cincinnati Commercial on June 2. Within days, Canadian newspapers reported that all their stories were “cooked to order.” As it turned out, “Dr. Merritt” was not really a doctor, and his testimony was entirely false. Sandford Conover was really Charles A. Dunham, of New Jersey. When authorities searched Dunham’s apartment in Montreal, they found evidence that he had been using many other aliases, and worse, that he had been a Confederate spy. Eventually, it developed that Dunham had concocted stories for a number of witnesses and had coached them on what to say. Though this was discovered before the trial ended, the commission heard nothing about it.27

  William Doster wanted to close the case of Lewis Powell on a positive note. He decided to have Dr. Charles H. Nichols, superintendent of the government asylum, evaluate his client and explain his mental state in light of the “moral insanity” theory. But Doster planned to do this at the end of the trial so the commission would go into deliberations with Dr. Nichols’s testimony fresh in their minds. His strategy backfired. On the day Nichols was slated to testify, word arrived that his wife had died. He rushed out, and Powell’s defense left with him. Judge Holt offered to have someone else examine the prisoner, and Doster agreed. Three doctors visited the prisoner that day, and they all concluded that Powell was not insane. As Dr. James C. Hall said, what he found was “a very feeble, inert mind; a deficiency of mind rather than a derangement of it—a very low order of intellect.” Though Hall had examined the prisoner for less than an hour, he felt confident that a person of normal intellect would at least be able to state his mother’s maiden name. Powell was unable to do so.28

  THE DEFENSE RESTED in mid-June, and began their closing arguments shortly afterward. They conceded that by the laws of conspiracy, the act of one participant transfers guilt to all. But that holds true only when it is the same act that they had conspired to do. Since the defendants had engaged in a conspiracy to capture the president, they could not be held responsible for Booth’s last-minute change in the plan.29

  Frederick Aiken argued that the evidence against Mary Surratt was purely circumstantial and showed nothing more than a social contact with Booth and various defendants. He said that none of the evidence pointed to her guilt in any conspiracy.

  Frederick Stone pictured his client Herold as “a weak, cowardly, foolish miserable boy” who was fond of jokes and eager to please. “Such a boy,” he said, “was only wax in the hands of a man like Booth.” The evidence showed they were friends who spent time together, and nothing more. All Herold did for certain was aid and abet Booth in his escape, and that was only a misdemeanor. He was not guilty of the murder, and was not present at the time it was committed.

  In defense of Ned Spangler, Thomas Ewing pointed out that his client was not the only stagehand who had done chores for the assassin, nor did Spangler prepare the president’s box for Booth, as alleged. The fact that Booth used his own gimlet to bore the hole in the door must surely point to the innocence of his client, “for if Booth had a confidant and confederate in this rough carpenter, the work would have been done by Spangler, or at least, with Spangler’s tools.” He noted that Spangler’s only contact with Booth was in and around the theater, and that he could not have helped the assassin escape, since he had remained at his post up to the moment of the shooting. Though Booth had told Sam Chester he needed “someone connected or familiar with Ford’s Theatre,” the only thing he wanted Chester to do was to hold open the back door, and in the end, Booth did that for himself.

  Arguing for Dr. Mudd, General Ewing refuted Lou Weichmann’s assertion that his client was on intimate terms with Booth. They had not seen each other since December, and Mudd had done nothing for Booth since then except dress his injured leg. He had reported Booth’s visit at the earliest opportunity, and he should not be held accountable for the fact that Lieutenant Dana ignored the report.

  In defense of George Atzerodt, William Doster showed that his client had never counseled Booth to kill anyone, nor had he lain in wait to kill the vice president. He had harmed no one, and had repeatedly tried to assist the government by offering a full confession. “He is guilty solely of what he confesses,” said Doster, “—of conspiring to abduct
the president—and of that [he] can be found guilty only under a new indictment.” With the commission’s assent, Doster finished his presentation by reading Atzerodt’s last statement into the record.

  Perhaps the ablest and most wide-ranging argument was that of Walter Cox, whose defense of Arnold and O’Laughlen was a masterpiece of reasoning and logic. After attacking the anomalous character of the charges, Cox dissected the evidence of Confederate involvement and showed that, as presented, the government’s case made no sense. He argued that the only evidence against O’Laughlen was the Arnold confession, which would not be admissible in any real court, and which proved no involvement beyond O’Laughlen’s presence at the Gautier’s meeting. Their scheme, “though not innocent, might almost be called harmless, from its perfect absurdity and impracticality.” Still, he said, capturing the president was “perfectly legitimate” under international law.

  Doster’s argument for Lewis Powell was as bizarre as it was eloquent. Since his insanity defense had crumbled, Doster began his summation by acknowledging that his client was “not within the medical definition of insanity,” and that he believed his attack on the Sewards was justified. He argued that Powell was “the moral product of the war,” which “made him an outcast and a fugitive on the face of the earth; took the bread out of his mouth; and gave him the alternative of dying obscurely by his own hand or notoriously by the death of a public officer.” He was in desperate straits when Booth found him and molded him to his will.

  Doster should have stopped there, but he continued, referring again to Powell’s deep conviction that what he had done was right. He even went so far as to paint his client in heroic terms.

  “What, then, has he done that every rebel soldier has not tried to do? Only this: He has shown a higher courage, a bitterer hate, and a more ready sacrifice; he has aimed at the head of a department, instead of the head of a corps; he has struck at the head of a nation, instead of at its limbs; he has struck in the day of his humiliation, when nothing was to be accomplished but revenge, and when he believed he was killing an oppressor.” 30

  Doster said that many people played a role in shaping Powell’s fate, from Southern slave owners to the brutal Union soldiers who burned homes and laid waste to civilian property. Yet even as he said this, he would surely have known that Gen. David Hunter, president of the commission, had been accused of such atrocities himself; that he had been declared an outlaw for arming slaves; and that Southerners considered him one of the most hated men in the U.S. Army. It was a serious miscalculation on Doster’s part to spread the blame for Powell’s crime to this man now sitting in judgment of him. He could not have harmed his client any more if he had stared General Hunter right in the eye and said, “You don’t have the guts to hang that boy!”

  If his closing argument did not guarantee a hanging, then surely a twist of fate did. On June 21, just as Doster was paying tribute to Powell, Frances Seward, wife and mother of Powell’s victims, suffered a heart attack and died. Popular rumor said that the horrors of April 14 had hastened her death.31

  After hearing the defense arguments, Lew Wallace wrote his wife, “I have passed a few words with my associate members, and think we can agree in a couple of hours at farthest. Three, if not four, of the eight will be acquitted—that is, if we voted today.” But they did not vote that day, and the prosecution still had a few more cards to play. On June 27, Joseph Holt surprised the commission by calling more witnesses. They were there to explain their earlier testimony, and to refute the charges of perjury that were being thrown around in the press. This may not have been necessary, since the charges had never reached the commission, and indeed, the testimony of Conover was taken as truthful even by the defense. But apparently, Judge Holt wanted to give his witnesses the final word.

  When they had finished, John A. Bingham presented a florid, two-day summation of the government’s case. He said that the military trial was a necessary and proper step in the preservation of order. He said that the Constitution was sacred, but that it was “only the law of peace.” In war, he said, it “must be, and is, to a great extent, inoperative and disregarded.”32

  Bingham summarized the evidence against Confederates, giving equal weight to hard facts, speculation, and outright fraud. He insisted that there had never been an abduction scheme, despite the testimony of his own witness, Sam Chester. And he ridiculed the notion of abducting the president in the theater, “much less to carry him through the city, through the lines of your army, and deliver him into the hands of the rebels. No such purpose was expressed or hinted by the conspirators in Canada, who commissioned Booth to let these assassinations on contract. I shall waste not a moment more in combating such an absurdity.”

  Bingham said that the letter from Sam Arnold found in Booth’s trunk proved that Arnold had not abandoned the scheme; on the contrary, it expressed his willingness to return at a “time more propitious,” and offered advice for the successful prosecution of the conspiracy. And because “the act or declaration of one conspirator . . . is the act or declaration of all the conspirators,” the “Sam” letter spoke for O’Laughlen as much as it did for Arnold.

  Since the law gave Bingham the final word, he was free to roam, as it were, without fear of contradiction. In the case of Dr. Mudd, he ran through the evidence, then insinuated that there was much more to the story. “What became of the horses which Booth and Herold rode to his house, and which were put into his stable, are facts nowhere disclosed by evidence. The owners testify that they have never seen the horses since. The accused give no explanation of the matter, and when Herold and Booth were captured they had not these horses in their possession.”33

  It was hardly a fair point to make, since the question had never come up. And even if it had, Dr. Mudd would not have been legally permitted to answer it. Bingham hit Mudd especially hard on the details of that encounter at the National Hotel. Though he had blocked every effort to show that it took place in December—not in January, as Weichmann claimed—he now argued that the date was immaterial because “the witness was not certain” about it. In fact, Weichmann had been certain, but as Bingham said, his subsequent wavering could help neither side, as “the burden of proof is upon the prisoner to prove that he was not in Washington in January last.”

  Peppered throughout his argument were ad hominem attacks on the defense counsel. Bingham criticized Reverdy Johnson for arguing “in behalf of an expiring and shattered rebellion,” and he charged Thomas Ewing with hypocrisy for denying the need for martial law, when Ewing himself had instituted some of the most extreme measures on record. Bingham used the words of Lord Brougham to contrast himself with the other side: “A friend of liberty have I lived, and such will I die; nor care I how soon the latter event may happen, if I cannot be a friend of liberty without being a friend of traitors at the same time—a protector of criminals of the deepest dye—an accomplice of foul rebellion and its concomitant, civil war, with all its atrocities and its fearful consequences.”34

  John Bingham’s summation justified his seat at the trial. Those who heard it would never forget the power of his presentation. “When referring to the rebellion or any of its leaders . . . ,” said Lt. Col. Richard A. Watts, of the prison staff, “his invective burned and seared like a hot iron. But when he touched upon the great and lovable qualities of the martyred Lincoln his lips would quiver with emotion, and his voice became as tender and reverent as if he were repeating the Lord’s Prayer.”

  On June 29, press, public, and prisoners were removed from the courtroom and deliberations began. As legal advisers, Holt, Bingham, and Burnett were allowed to sit in on the debate, answering questions on testimony, evidence, and the fine points of law. This was a privilege allowed by military law. They used it, apparently, to persuade the commission to adopt a last-minute rule: the nonunanimous verdict. Under this new rule, the accused could be convicted by a simple majority, while a two-thirds vote carried an automatic sentence of death.

  After
a day and a half of deliberations, the commission returned a verdict of guilty for each defendant. Arnold, Mudd, and O’Laughlen each received five votes for conviction, and each was sentenced to life in prison. Edman Spangler was acquitted of conspiracy, but was convicted of aiding and abetting in Booth’s escape, “well knowing” what he had done. He received a six-year sentence. Mary Surratt, Lewis Powell, David Herold, and George Atzerodt were convicted by a two-thirds majority or more. Each was condemned to death.35

  From May 8 to June 30, the commission had examined 371 witnesses, hearing testimony that filled 5,010 pages and took six weeks to brief and file. Witnesses, trial staff, and prisoners consumed 1,768 meals at government expense. One hundred twenty more witnesses were subpoenaed but did not appear.

  Was the trial fair? John Bingham said it was “as fair as in any court,” but the record left room for disagreement. Henry Kyd Douglas, a trial witness and author of I Rode with Stonewall, said, “If Justice ever sat with unbandaged, blood-shot eyes, she did on this occasion.” 36

  The judge advocates have had more than their share of critics, especially in modern times. Even though history has denied them credit for following the rules of evidence, it rightly condemns them for the irregularities they brought to this trial: the disingenuous arguments, the subornation of perjury, the payment of witnesses, and the presentation of evidence they knew to be fabricated.

  Their transgressions may not have been necessary. The laws in 1865 were already weighted in the government’s favor, and a rigid adherence to the existing rules of evidence would probably have produced the same result. Given the temper of the times, a civilian jury was no more likely to acquit the defendants than the commission was—though they might have gone easier on Ned Spangler.