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The Conspirator

Posted By - Fred L. Borch III
Mar 14, 2011 at 9:41pm | Filed Under “The Conspirator

“Frederick Aiken: A Proper Defense”

Read historian Kate Larson's opinion of Aiken's defense here.

Did Frederick Aiken (James McAvoy in THE CONSPIRATOR) know what he was doing in defending Mary Surratt? Was his defense theory sound? Did he call the right witnesses and ask the correct questions on cross-examination? Should he have called others? Was his closing argument on point? Did he underestimate the prejudice against Mary's Catholicism? Finally, should Aiken have applied for a writ of habeas corpus at the beginning of the trial rather than after Mary had been sentenced to death?

Aiken's general theory was that Mary was not guilty of conspiring to murder the president because she was simply a good Christian woman who ran a boarding house--and was oblivious to the plotting going on around her. To put it another way, Mary was pious and good but simply at 'the wrong place at the wrong time.' More importantly, it was not her fault if her son, John Surratt, had befriended Booth and brought the other conspirators into her home. She ran a boarding house; she needed boarders; boarders have acquaintances and friends who must be welcomed into the home if she were to be financially successful.

Aiken realized that it was John Lloyd who posed the greatest danger to Mary, because he testified that she came to visit him between four and five o'clock on the afternoon of the assassination--April 14--and ordered him to have "shooting irons" ready for men who would be coming to get them later that day. Lloyd's testimony not only put Mary inside the conspiracy to murder Lincoln, but was evidence that she actually knew that John Wilkes Booth was going to shoot the president later that day.

At the trial, Aiken attacked Lloyd in two ways. First, he argued that Lloyd had a motive to lie about Mary's participation in the conspiracy because Lloyd himself was under suspicion--and lying about Mary would please the government and minimize his own culpability. Second, Aiken insisted that Lloyd was a habitual drinker and spent much of his time under the influence of alcohol--suggesting that when he claimed Mary came to see him on April 14, he was really too intoxicated to know what Mary might or might not have been saying.

The appearance of Lewis Payne at Mary's house also was damaging, and not just because it revealed that the man who had tried to murder Secretary of State William Seward knew Mary and knew where she lived. Rather, the true import of Payne's appearance at Mary's boarding house was that, when he was in trouble, Payne went where he thought he would find refuge. It was the proverbial 'ship in a storm seeking a safe port.'

Aiken tried to diminish the damage done by Mary's denial that she knew Payne by offering evidence that she was near-sighted and had a hard time distinguishing faces because of her poor vision--but with mixed results.

Finally, Aiken knew that what hurt Mary very much was circumstantial -- about which little could be done. Since her son, John Surratt, was a close confederate of Booth's, there is no doubt that some members of the commission believed that a mother who lived under the same roof as her son must have known that that son was plotting to harm the president.

In addition to trying to discredit witnesses through cross-examination, Fred Aiken tried to present evidence tending to support Mary's innocence. For example, he called a number of Catholic priests to testify that Mary was a good Christian. He called a number of newly freed slaves to testify that Mary was friendly toward Union soldiers. He presented some testimony on her poor vision.

'Don’t let your desire for revenge cause you to commit an injustice' [by finding Mary guilty]. That is Aiken's theme--and it is a good one. He also argued that the government had not proved that Mary was guilty beyond a reasonable doubt. Again, a good argument. Aiken attacked the evidence against Mary as weak and mostly circumstantial. The dangerous nature of Lloyd's testimony, however, required a head-on attack -- which Aiken did: he insisted that Lloyd's claim that Mary had come to see him on the afternoon of the assassination was false (because of Lloyd's need to diminish his own culpability) and unreliable (because Lloyd was a drunk). Aiken also argued that there was a good explanation for Mary's inability to recognize Lewis Payne. Finally, Aiken insisted that, as a good Christian woman, Mary simply could not have been a part of anything as evil or nefarious as a plot to kill Lincoln.

It's a B or B- at worst. Given that the military commission process so favored the government, and that Aiken had little courtroom experience, his defense of Mary was really quite good. After all, despite Judge Advocate General Holt's insistence that Mary be sentenced to death, five of the nine members of the commission pushed back--and, while they ultimately agreed to vote for death, they signed a petition to Andrew Johnson in which they asked that Mary's life be spared. Without extraordinary intervention at the very highest levels of the U.S. government, Frederick Aiken would have saved his client's life, at the very least.

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  • JFrederick
    03/21/2011 at 7:57pm


    Well said Mr. Borch! I agree with your sentiments on Reverdy Johnson. Do you think his weak defense was actually rooted in a deep conviction of his legal interpretation or was he unwilling to get too involved/could not be bothered to properly prepare. I do recall that although he did not present his own closing defense, it took something like two hours to read. I also agree that Aiken and Clampit deserve much praise for their attempts at clemency. Great discussion!

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  • jlady1220
    03/21/2011 at 4:59pm


    I don't think scapegoating is the correct word. The country wanted someone to pay for Lincoln's assassination. Booth's death, days later, did nothing to satisfy anyone because it was so private (and there are those who believe it was not Booth in the barn). The Government wanted to give the people someone (s) to hate. It was the time, it was too close to the event. Bear in mind that when John Surratt was finally tried for the crime, he was acquitted with the same evidence that damned his mother.

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  • fred_borch
    03/17/2011 at 4:09pm


    JFrederick, that's sort of how I see it. I think my colleague and friend Kate Larson is being too hard on Aiken and Clampitt. Yes, they were inexperienced. Yes, they made mistakes at trial (presented the wrong witnesses, asked the wrong questions). But Reverdy Johnson abandoned them and the military commission process itself was an insurmountable obstacle -- my point is that even an experienced lawyer would not have been able to save Mary from the hangman -- and if Reverdy Johnson had remained at the trial, the result would still have been death for Mary. Aiken's spirited defense, however, did result in a clemency petition and his courage in getting the writ of habeaus corpus from Judge Wiley almost saved Mary.

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  • JFrederick
    03/16/2011 at 10:03pm


    I recently read "The Assassin's Accomplice" in preparation for this movie so I could have a command of the facts. Larson grades Aiken's defense as mediocre to downright poor. A large portion of Aiken's case rested in the claim that Surratt's eyesight was poor and thus did not recognize Lewis Powell when he stumbled into investigators at her house on April 17. Despite this claim, Aiken called witnesses to the stand stating her eye sight was fine. In addition, Aiken called to the stand priests and associates who barely knew Surratt and could not confirm her loyalty to the Union. The fact that few "true" friends or family came to her defense in court is a testament to the fact that she was not close to many and may even be another point alluding to her likely guilt. Aiken and co-defender John Clampitt were inexperienced in the world of legal matters but you nevertheless have to give them an A for effort given their situation. Reverdy Johnson, Surratt's other defender in court, argued that a military tribunal judging civilians was unconstitutional. This was not an unsound interpretation of law, but it was Johnson's only point in defending Surratt. No wonder Aiken and Clampitt did a less than stellar job when their team leader abandoned them in the first week of the trial! The defense shot themselves in the foot on more than one occasion. That said, their efforts to attempt to get her a last minute pardon were most honorable.

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  • fred_borch
    03/16/2011 at 9:01pm


    I certainly agree with vic_tom01 that we have an imperfect system of justice and that innocent people are sometimes convicted. And yes, the American public was thirsty for revenge. But was Mary innocent? There is plenty of evidence that she was part of a conspiracy to harm the president ... but did she know about Booth's plan to kill Abraham Lincoln? The government thought so ...

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Fred L. Borch III

U.S. Army (Ret.) Historian

Colonel Fred L. Borch (Ret.) is the Regimental Historian and Archivist for the U.S. Army Judge Advocate General's Corps - one of only two full-time legal historians in the U.S. Armed Forces.

Fred served 25 years as a military lawyer in the Army Judge Advocate General's Corps. His areas of... More

Fred L. Borch III

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