The Artful Jurist

Here it is, the 200th anniversary of the birth of Abraham Lincoln, and the popular media are all abuzz with Lincoln-themed stories and dramatizations. It's to be expected. Here in America, it would be difficult to find a more frequently depicted political personage than our 16th president. In fact, my mother recently gave me a book devoted entirely to the many, many portrayals of Lincoln on stage, screen, and television.

I, myself, have written a Lincoln-themed play—although the character of Abe never enters the stage. No, rather, my play takes another oft-dramatized route. It deals with the Lincoln assassination and follows the story of the trial and execution of one of the people accused of being part of the assassination conspiracy. Specifically, it focuses on Mary Surratt, who holds the dubious distinction of being the first woman judicially executed by the United States government. Mary Surratt owned the boardinghouse where John Wilkes Booth and others (including Mrs. Surratt's own son) were alleged to have conspired. She, along with three other defendants, was hanged on July 7, 1865—only one day after the verdict was handed down. Justice was swift in those days.

Despite the title of the play—The Judicial Murder of Mrs. Surratt—the drama attempts to tell the story without a bias regarding the title character's guilt or innocence. This was deliberate on my part because, more than 140 years later, the justice or injustice of her sentence is still debated. Some say she got what she deserved. Others say she was railroaded by a government out to revenge its first presidential assassination. Those latter people are the ones who sometimes call her execution "judicial murder."

As the author of the play, I'm often asked whether I believe she was truly guilty or innocent. After researching the subject for two years and spending at least another year writing and revising the play I wrote about her, I can honestly say I don't know. Some of the evidence looks quite incriminating. But other evidence calls into question serious doubt about whether Mrs. Surratt was truly aware of specifically what Booth and the others were planning. One has to assume that information about plotted presidential assassinations is shared on a "need to know" basis only. It could easily be argued that, unlike others who were tried for the crime, Mrs. Surratt was not an essential component of the plot.

For those who would like a more lawyerly answer, including those of you writing your own courtroom dramas, let me offer this…

Mary Surratt had her days in court. Some of the evidence pointed toward her guilt while other evidence suggested innocence. None of the evidence was absolutely incontrovertible. Therefore, it was up to the tribunal hearing the case to weigh the evidence and make a decision. In America, the standard by which a person may be found guilty of a crime is that the evidence must prove guilt beyond a reasonable doubt. A reasonable uncertainty is all it takes for a person to be found not guilty. If you ask me whether the evidence against Mrs. Surratt could have provoked that element of uncertainty in the minds of those trying the case, my feeling is that it is possible that it might have. That is, a reasonable person hearing the evidence might come to the conclusion that there's a reasonable doubt about what she was accused of doing. Had another panel of jurists heard the case, I believe it's possible the verdict might have been not guilty.

However, note that I'm saying a reasonable person might draw that conclusion. In many cases, two reasonable people could weigh the evidence and come to two completely opposite conclusions regarding reasonable doubt. In Mrs. Surratt's case, there was evidence on both sides, and it was up to the jurists to decide how much weight to give to any particular piece of evidence. So, if we were to review the decision as an appeals court might to determine whether the decision was not a reasonable one, we have to review it by a completely different standard. That standard is called "clearly erroneous." A clearly erroneous decision is one that is not founded in reason and must be overturned to prevent a miscarriage of justice. That's a much tougher standard to conquer. And, in Mrs. Surratt's case, I'm not sure a convincing argument could be made that there was no possible way for the tribunal to arrive at the decision it did. Therefore, I believe, attempting to overturn the decision on a clearly erroneous standard would likely fail, and the verdict would remain as it was—guilty.

There's more information about Mary Surratt at the Surratt Society's web site. You can also read a short courtroom excerpt of my play online.