Kline v. Green Mount Cemetery

WILNER, Chief Judge. The zany comedian, Groucho Marx, forever tried to stump contestants on his popular television quiz show with the question, “Who is buried in Grant’s tomb?” That, of course, was farce and comedy. Appellants here are much more serious. They are distant relatives of John Wilkes Booth—the assassin of Abraham Lincoln—and they want to know who is buried in Booth’s tomb.

To get that answer, appellants filed a petition in the Circuit Court for Baltimore City to have the remains of the person thought to be John Wilkes Booth exhumed from the Booth family plot in Green Mount Cemetery and examined. Their ³⁸⁷ hypothesis was that the body buried there was not that of Booth—that Booth had escaped from the Union troops sent to find and capture him and that, to cover up its mistake in announcing that Booth had been shot to death, the Government had someone else buried in Booth’s place. The cemetery was allowed to intervene in the case. After a four-day trial, the court denied the petition.

Judge Kaplan concluded: “To summarize, the alleged remains of John Wilkes Booth were buried in an unknown location some one hundred twenty-six (126) years ago and there is evidence that three infant siblings are buried on top of John Wilkes Booth’s remains, wherever they may be. There may be severe water damage to the Booth burial plot and there are no dental records available for comparison. Thus, an identification may be inconclusive. A distant relative is seeking exhumation and any exhumation would require that the Booth remains be kept out of the grave for an inappropriate minimum of six (6) weeks.

The above reasons coupled with the unreliability of Petitioners’ less than convincing escape/cover up theory gives rise to the conclusion that there is no compelling reason for exhumation.” In this appeal, appellants make three complaints: (1) the court erred in failing to restrict the role of Green Mount Cemetery in opposing the exhumation; (2) it erred by failing to recognize Virginia Kline as a proper party to the petition; and (3) its factual determinations were clearly erroneous. We find no merit in these complaints and therefore shall affirm. BACKGROUND Introduction Courts are constantly called upon to decide, from conflicting evidence, what is fact. That, indeed, is their daily fare.

They have, of course, no firsthand knowledge of what is fact—who really had the green light, whether it was the defendant who actually shot the victim—but, to perform their public role as adjudicator, they are empowered to declare, from the evidence ³⁸⁸ presented to them, what is fact, and, based upon those declarations, whether implicit or explicit, to enter judgments. This case involves that process as well, but in a somewhat unusual context. Appellants’ case rests, ultimately, on the proposition that a piece of conventional, widely accepted American history is not accurate; they posit that John Wilkes Booth was not killed by Union troops on April 26, 1865, as commonly believed, but that he somehow managed to escape and that he may have gotten to Texas and Oklahoma and survived under assumed names until 1903. At this stage of the case, appellants have retreated somewhat from the outright assertion that Booth did escape.

They do maintain, however, that there is a sufficient likelihood of that having occurred to justify disinterring the remains of the person thought to be Booth in order to make a more complete investigation. Appellants recognize that they have no right to a disinterment; indeed,, the law plainly disfavors such actions. Judge Cardozo perhaps said it best for the New York Court of Appeals in Yome v. Gorman, 242 N.Y. 395 , 152 N.E. 126, 129 (1926): “The dead are to rest where they have been laid unless reason of substance is brought forward for disturbing their repose.” See also Dougherty v. Merc.-Safe Dep. & Tr., 282 Md. 617, 620, 387 A.2d 244 (1978), quoting and adopting that view and making clear that, after burial, descendants do not have property rights in the body, for it is in the custody of the law. Unlike most cases of this kind, the reason asserted by appellants for exhuming the body has nothing to do with the personal wishes of those who knew and loved the decedent, for no such person is still alive, or with any religious or other emotional imperative, or with any external exigency.

It is founded almost entirely on their perception of historical accuracy, which differs radically from the officially documented and conventionally held belief. Thus, the court is called upon to determine, at least in part, whether they have made a sufficient case, based on the evidence they presented, that the accepted history is not accurate and is in need of this kind of ³⁸⁹ further inquiry. Appellants, and perhaps more credentialed scholars, may continue the academic debate over what actually happened to John Wilkes Booth in the days and years following April 14,1865; our appraisal of the fact is a judicial, not an academic, one, based on what has been presented in evidence. What follows must be taken in that light.

Conventional History On April 9, 1865—Palm Sunday—Robert E. Lee surrendered the Army of Northern Virginia to Ulysses S. Grant at the McClean home in Appomattox Courthouse, Virginia, effectively concluding the rebellion that is still regarded as this country’s most wrenching national experience. President Lincoln was busy during the ensuing days dealing with the myriad of military and political details comprising the aftermath of the surrender and presaging the beginning of national reconciliation. April 14 was Good Friday. At his wife’s urging, President and Mrs. Lincoln attended a performance of what Carl Sandburg has referred to as a “third-rate drama,” Our American Cousin, at Ford’s theater.

The couple arrived at about 9:00; the play was in progress but was temporarily interrupted when the audience, learning of the President’s arrival, stood and cheered him. He acknowledged the ovation from his flag-draped box. The play then proceeded. Just after 10:00, Booth entered the theater, climbed the stairs and was allowed to proceed through the Dress Circle into the hallway leading to the boxes.

He entered Box 7, and, with a single-shot derringer pistol, propelled a lead ball obliquely into the left side of the President’s head. Major Henry Rathbone who, with his fiancee, had accompanied President and Mrs. Lincoln to the theater, attempted to grab Booth, who was armed also with a knife, and was slashed on his left arm for his effort. Booth jumped over the railing to the stage some 12 feet below, injuring his leg in the process. There was some evidence that he became entangled in one of the flags and actually fell on to the stage.

He shouted something to the audience; the popular version is that he cried the motto of Virginia, Sic Semper ³⁹⁰ Tyrannis, although some witnesses claimed that he shouted other slogans—“The South is avenged,” or “The South shall be free.” 1 With his knife, Booth threatened the one actor then on the stage and other persons nearby, made his way outside, mounted the rented horse that he had waiting in the care of a stable-boy, and made his immediate escape. The President was taken to the home of William Peterson, across the street from the theater, where, despite the efforts of the Lincoln family physician, the Surgeon General, and other doctors in attendance, he remained unconscious and eventually expired at 7:22 the next morning, April 15. It appears that Booth, followed closely by his accomplice, David Herold, and pursued by the stable-boy from whom he had rented the horse, made his way to the Navy Yard bridge, which he and Herold, but not the stable-boy, were allowed to cross into Prince George’s County. They proceeded first to John Surratt’s tavern, where they retrieved a carbine and some other items they had previously stored there, and then, about dawn on the 15th, to the home of Dr. Samuel Mudd.

Mudd, claiming to have been unaware at the time that Booth had assassinated Lincoln, set Booth’s broken leg and gave him a pair of crude crutches. It was there that Booth shaved off his mustache. It did not take long for the authorities to identify Booth as the assassin and to form the belief that John Surratt and David Herold were his accomplices. In part, at least, that information came from the stable-boy who had pursued Booth and from the guard at the Navy Yard bridge who had let ³⁹¹ Booth and Herold pass.

Within days, posters containing Booth’s picture and announcing rewards of $50,000 for his capture and $25,000 each for the capture of Surratt and Herold, were widely circulated throughout the area. Union troops, following various leads, promptly commenced a widespread search for everyone thought to be involved. After leaving the Mudd home, Booth and Herold made their way over the next several days to the Potomac River, crossing into Virginia on the night of April 22. On the 24th, they crossed the Rappahannock at Port Conway where they came upon three former Confederate soldiers, including William Jett.

Jett led them first to the Peyton home in Port Royal, where they were refused lodging, then to a tavern known as “The Trappe,” and finally to the farm of Richard Garrett. Garrett may have allowed Booth to stay in the house the first night but at some point made him move to the barn; Herold remained with Jett for another day but then joined Booth at the Garrett place. Garrett locked the barn, and he and his brothers kept an eye on it, for fear that their guests might steal the Garretts’ horses. Meanwhile, a unit of detectives assigned to the War Department learned that Booth and Herold may have crossed the Potomac.

They secured a detail of 26 troopers from the 16th New York Cavalry as an escort and set out to search for the pair. The group reached Port Conway on the 25th and, from inquiries, learned that Booth, without a mustache, had joined with Jett and others and that Jett could likely be found at the Star Hotel in Bowling Green. The unit surrounded the hotel, found Jett and took him prisoner, and was informed by him that Booth and Herold were at the Garrett farm. Under the command of Lt.

Edward Doherty, the cavalry unit arrived at the Garrett farm around 3:00 a.m. on April 26. They had pictures and a description of Booth. Stories differ somewhat as to why they turned their attention to the barn. Under one version, one of the soldiers, Emory Parady, heard noises inside the barn and alerted Lt.

Doherty. Under another, one of the Garrett brothers, under some measure of ³⁹² duress, informed the soldiers that the pair were in the barn. Doherty then ordered the occupants to come out and, after some period of negotiation, threatened to set the barn on fire. That was enough for Herold, who came out and was captured.

Booth remained inside. Around 4:00, Detective Everton Conger set the barn ablaze. Booth could be seen inside carrying a pistol and a carbine. A single shot then rang out and struck Booth in the neck—some profess that Booth shot himself, others maintain that it was either Conger or Detective Luther Baker who fired the shot to keep Booth from revealing a larger government conspiracy.

The best evidence, and the official report, is that Booth was shot from some distance by Sergeant Boston Corbett’s revolver. Two men—Baker and Conger—ran to the blazing barn and pulled Booth out. He was still alive, but he died two to three hours later. Booth’s body was taken by wagon from the Garrett place to the steamboat John S. Ide, which had ferried the Union troops down the Potomac, and was carried then, in the custody of Detective Baker, to the USS Montauk in Washington.

Aboard the Montauk, an inquiry was held by Army Judge Advocate General Joseph Holt. Several witnesses identified the body as that of Booth. Thereafter, Surgeon General Joseph K. Barnes conducted a post mortem examination, noting the cause of death as a gunshot wound to the neck, the ball passing through the bony bridge of the fourth and fifth cervical vertebrae and severing the spinal cord. Dr. Barnes also noted that the left leg was encased in splints and bandages, upon the removal of which a fracture of the fibula three inches above the ankle joint was discovered.

Following the autopsy, the body was taken to the former Washington Penitentiary and buried in a storage room. In 1867, it was disinterred and buried in another storage area at the penitentiary. In 1869, near the end of his administration and at the request of Booth’s mother, Mary Ann Booth, and his brother Edwin Booth, President Johnson released the body to the family for permanent burial in the family plot at Green Mount Cemetery in Baltimore. John H. Weaver, a Baltimore undertaker and Sexton of Christ’s Church, took ³⁹³ possession of the box containing Booth’s remains in February, 1869, and removed it to his private vault at Green Mount Cemetery, to await warmer weather for digging a grave. 2 Burial occurred on June 26, 1869, in the presence of Booth’s mother and two brothers.

At the request of his brother, Edwin, the grave was not marked. The body so buried has remained there, undisturbed, to this day, nearly 127 years. Appellants’ Petition and the Cemetery’s Response On October 31,1994, Nathaniel Orlowek, Arthur Ben Chitty, Virginia Kline, and Lois Rathbun filed an ex parte petition to exhume the alleged remains of John Wilkes Booth from Green Mount Cemetery. Orlowek was identified as a religious educator with a bachelor’s degree in history who has “spent the majority of his life examining the details of the life and death of John Wilkes Booth.” His research, he averred, “has been prominently featured on many radio and television programs, including ABC’s 20/20 and a 1991 segment of NBC’s Unsolved Mysteries.” Chitty was identified as a “historiographer” who has “actively researched the circumstances surrounding the escape of John Wilkes Booth since the 1950s,” and whose research has appeared in such scholarly journals as the Chattanooga News-Free Press and the Baltimore Sun.

Ms. Kline identified herself as a third cousin of Booth; her great-grandmother was Booth’s aunt—the sister of his father. Ms. Rathbun claimed to be the great-great-niece of Booth. Other persons, denominated as “interested non-parties,” consisted of a collection of third, fourth, and fifth cousins of Booth and claimed to be, in addition to Ms. Kline and Ms. Rathbun, the lawful heirs and direct descendants of Booth. The petition asserted that many stories had surfaced over the years challenging the official history that Booth was killed by Union troops at the Garrett farm, but that one story in ³⁹⁴ particular had survived “with its credibility and persuasiveness intact.” That story was an account by a lawyer in Granbury, Texas named Finis L. Bates, published in a 1907 book entitled The Escape and Suicide of John Wilkes Booth.

In this book, Bates described meeting a man in 1872 by the name of John St. Helen who, five years later, believing himself near death, confessed to Bates that he was John Wilkes Booth. This man told Bates that he had escaped from the Garrett farm and that the person killed by the Union troops was a “young man named Ruddy or Robey.” According to Bates, he did not see St. Helen again until 1903, when he learned that the man, then calling himself David George, had committed suicide in Enid, Oklahoma. Bates had the body mummified, and the mummy was later exhibited throughout the United States under the name of John Wilkes Booth. At some point, an autopsy was performed on the mummy.

The petition went on to challenge certain details of the official record based, in large part, on newspaper stories, photographs of St. Helen (or George), examination of the mummy, and second and third-hand hearsay statements casting doubt on the various identifications of Booth’s body following the events of April 26, 1865. The concluding paragraph acknowledged that the petitioners could not “ascertain the credibility of the people who provided the testimony or affidavits that originally spurred this debate” but that the technology “now exists to close the books on this controversy forever, and ensure that history has been taught correctly or is corrected.” Green Mount Cemetery moved to dismiss the petition on the grounds that an ex parte petition was not the proper procedure, that this one in particular failed to state a claim upon which relief could be granted, and that the petitioners lacked standing. The court granted the motion with leave to amend, and an amended petition was filed, this time by Ms. Kline and Ms. Rathbun alone, who asserted standing as the legal heirs of Booth. The rest of the amended petition was not substantially different from the initial one in its recital of the dispute engendered by Bates’s 1907 book and the various ³⁹⁵ statements and reports challenging some of the details and identifications that form part of the official history.

The cemetery answered the amended petition. It stated its interest as having been entrusted by Mary Ann Booth with the remains of her son, John Wilkes Booth, and other members of the Booth family who are buried in the family plot. Most of the factual allegations in the petition were denied; as to others, the cemetery said that it had no knowledge. It challenged the standing of the two remaining petitioners and asserted that the petition did not contain substantial evidence or present to the court substantial reason to justify disinterment and exhumation of the remains.

The petitioners responded with a motion to dismiss the cemetery or, in the alternative, to “delineate” its role. They averred that the cemetery’s presence in the case was unnecessary and improper and that, at the very least, its role should be “restricted to the introduction of evidence pertaining solely to potential violations of its regulations, and it should be precluded from directly challenging the merits of the Petition.” That motion was denied, and, as a result, the cemetery was allowed to present substantial evidence in support of the official history indicating that (1) Booth is indeed buried in the cemetery, (2) no one knows exactly where he is buried, (3) there likely are other bodies buried on top of his, which would have to be disturbed in order to disinter Booth’s remains, (4) remains located in the Booth plot may be damaged by water, and (5) even if the body were exhumed, a positive identification of it, for a number of reasons, is unlikely. The court obviously accepted much of that evidence and discounted the conflicting evidence produced by the petitioners. Hence, this appeal.

DISCUSSION The Role of Green Mount Cemetery Appellants’ first complaint is that the court failed to restrict the role of the cemetery in challenging their petition. Their argument is that, when there is no dispute among the ³⁹⁶ family members—and there was none here—cemeteries should be only a nominal party, whose role should be restricted to ensuring that their regulations or other relevant agreements are not violated by the disinterment. In most of the cases in which a court order is sought allowing or precluding a disinterment—other than for public necessity, such as a criminal investigation—the disagreement bringing the case to court is among family members, often over a desire by someone to change the place of burial. See, in general, Annotation, Removal And Reinterment Of Remains, 21 A.L.R.2d 472 (1952).

In many of those cases, as noted by appellants, the cemetery indeed chooses to play a passive role, allowing the warring' relatives to make their respective cases; the cemetery is often named as a defendant so that it will be bound by, and have the protection of, any ultimate court order. As a result, while the case law is fairly well-developed with respect to who may seek disinterment and what other family members must or may be joined in such actions, there are few decisions defining the role of cemeteries. It is not the case, however, as appellants contend, that, absent some contract or regulation specifically barring or limiting disinterment, the cemetery is necessarily restricted to a neutral or passive role. There are instances in which the cemetery has been allowed to take an active role in opposing a disinterment.

See, for example, the oft-cited case of Sacred Heart of Jesus Polish Nat. C. Church v. Soklowski, 159 Minn. 331 , 199 N.W. 81 (1924), in which a cemetery was granted standing to sue as á plaintiff to enjoin a disinterment, the Court holding 199 N.W. at