I chanced to read this at the time when the Supreme Court was ruling on President George W. Bush's use of military tribunals in dealing with terrorism. Their use is one of the main issues in the attempts to exonerate Dr. Samuel A. Mudd.

The book consists of a variety of pieces, the first being a moot court at which the judges were asked to overturn the conviction, chiefly either because the military tribunal was improper, or because the evidence was insufficient. This is interesting, and I am sure was a fine learning experience for the law students, but like the other two moot courts that I have watched or read the transcript of, the length was determined by the convenience of the participants, not the evidence involved, so the issues were inadequately discussed.

In Part II, five experts contributed essays arguing about the issues of the cases. The Appendices include the Mudds' attempt to have the Army Board for Correction of Military Records (ABCMR) change the records.

Mudd's descendents have explicitly asked to have him declared innocent and have also attempted to have the conviction overturned either on the grounds of a mistrial or for lack of sufficent evidence. "Innocent", "Not Guilty" and declaring a mistrial are three different things. The USA legal system, for better or worse, doesn't find people innocent, since the burden of proof is on the prosecution to prove the accused guilty. The Mudds contacted various USA presidents, attempting to get some sort of declaration. With the separation of powers, the President can issue pardons, but not, I think, overrule the courts. I believe that maintaining this distinction matters and not to be abandoned for a feel-good public gesture.

As to the question of overturning the conviction, the book convinces me that the claim that laws are written in such difficult language for clarity is nonsense. Clearly, there is no unanimity. The arguments regarding the jurisdiction of the military tribunal include: whether the Civil War really a war; whether the war was still going on; whether a war crime necessarily involves people of different nationalities. Many of these arguments left me thinking that the law is truly inadequate, in addition to insufficiently clear. Neither the experts who uphold the convictions nor the experts who would overturn it agree on the facts or the law.

If Mudd is to be cleared because courtroom procedure has changed over the years, presumably thousands of other convictions should also be overturned. One of the arguments for overturning the verdict is that Mudd was not allowed to testify. But it was not until 1878 that the accused were considered competent to testify. If Mudd should be exonerated for that reason, so should everyone else convicted of a crime under the old rules.

The argument also rages about the adequacy of the evidence. Usually, except in extraordinary situation, appeals courts consider the conduct of the trial, not the guilt or innocence of the accused. The rule is that the original court, which heard and saw the witnesses, can better judge their veracity.

Only an extraordinary situation would justify any official action, and I don't see that there is one. If Mudd is to be declared "innocent", then the burden of proof is on his defenders, There is no unanimity among the experts as to the law or the facts. If modern forensic evidence was able to prove that it wasn't Dr. Mudd who met with Booth before the assassination, but his evil twin Skippy, I might consider exoneration appropriate.

The best summation was by William D. Clark, Acting Assistant Secretary of the Army, in responding to the ABCMR recommendations: "... The precise issue ... the jurisdiction of the military commission over Dr. Mudd, was specifically addressed at the time in two separate habeas corpus proceedings ... There was also an opinion by the Attorney General of the United States. ... Even if the issue might be decided differently today, it is inappropriate for a nonjudicial body ... to declare that the law 127 years ago was contrary to what was determined contemporarily by prominent legal authorities." ( )