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Joseph Smith's habeas corpus hearings dramatized in stage play

Published: Wednesday, March 26 2014 2:35 p.m. MDT

SALT LAKE CITY — Efforts by the Prophet Joseph Smith to defend himself from legal attacks using the centuries-old doctrine of habeas corpus were showcased in a stage play and panel discussion at the University of Utah and Brigham Young University this week.

“Habeas Corpus in the Courts: Individual Liberties from Joseph Smith to Abraham Lincoln to Guantanamo” was presented in Salt Lake City on Tuesday. A repeat performance was scheduled for Wednesday in Provo.

Jointly produced by the Illinois Supreme Court Historic Preservation Commission and the Lincoln Library and performed first in Springfield, Ill., and later in Chicago, the production was brought to Utah by Zions Bank and co-sponsored by the law schools at the University of Utah and Brigham Young University.

“In April of 1839, Joseph Smith and his colleagues, including his brother Hyrum, were indicted by a grand jury on charges of treason, arson and robbery in Gallatin, Daviess County, Mo.,” explained Jeffrey N. Walker, senior adviser of the Joseph Smith Papers project of the LDS Church History Department, adjunct law professor at BYU and author of the stage play, as he addressed invited guests at a pre-performance dinner at the University of Utah.

“After being indicted, they secured a change of venue to Columbia, Boone County, Mo., about 150 miles southeast toward Illinois.”

He recounted, “En route to Columbia, Joseph Smith and his friends were either released or allowed to escape, depending on whom you believe. Certainly no posse was formed to try and recapture them, and Joseph arrived in Nauvoo riding a chestnut-colored horse he had bought from one of the guards.”

In December of that year, Joseph traveled to Washington, D.C., carrying more than 700 affidavits from families that had lost homes, businesses, farms and lives during their forced exodus from Missouri. While neither Congress nor the U.S. president offered any redress, “the brutality of frontier Missourians was recognized on the national stage,” Walker said.

Sixteen months later, in an apparent attempt to justify his actions in driving the Mormons from the state, Missouri Gov. Lilburn W. Boggs, at the end of an unpopular term, sought an extradition attempt for Joseph Smith to stand trial on the 1839 charges, Walker recounted.

“Joseph Smith was thereafter arrested just outside Quincy, Ill. He immediately engaged counsel to file a writ of habeas corpus to have his arrest reviewed. This would be the first of three attempts by the state of Missouri to try and extradite him. The play you will watch this evening is a telling of these three hearings. Joseph believed that if he was taken back to Missouri in custody, he would lose his life.”

The purpose of the panel discussion was to place the events in a broader historical context, Walker said, as well as examine the relevance of these early 19th-century events today.

Walker said the constitutionality of habeas corpus lies at the foundation of the U.S. republic. The panelists discussed the evolution of the right from the 1800s through the period of the Civil War down to today when it is an issue pertaining to the detainment of prisoners at Guantanamo Bay in the wake of the 9/11 terrorist attacks.

Habeas corpus provides for a person under arrest to be brought before a court to determine if the person’s detention is lawful.

“Joseph Smith loved the Constitution,” Walker said, “and (I) believe he would have embraced the Pledge of Allegiance of one nation under God, indivisible, with liberty and justice for all. Tonight, we will examine whether we are living up to these noble aspirations.”

With no special scenery or costuming, the play was something of a reader’s theater involving just four actors portraying 16 characters, including Joseph Smith, other leaders of The Church of Jesus Christ of Latter-day Saints, attorneys, judges and Missouri Gov. Boggs.

The character of Stephen A. Douglas, the well-known Illinois lawyer, jurist and statesman, was the narrator, sometimes giving the audience the background of the hearings in which Joseph Smith was involved. Some dramatic license was taken, but the portrayals were based on actual events of the three habeas corpus hearings on extradition attempts by the state of Missouri.

In the first hearing, a warrant of arrest had been issued against Joseph Smith by Gov. Carlin of Missouri on 1839 Missouri indictments, and the case was heard in Springfield before Douglas. The Prophet, through attorneys, contended he was unlawfully taken into custody and the indictment was obtained by fraud, bribery and duress.

Douglas ordered the Prophet released but made his ruling on a narrow procedural issue that the warrant itself was invalid. This disappointed the Prophet, who wanted the ruling made on the facts of the indictments. But the result was that he was freed.

The second extradition attempt stemmed from an assassination attempt against former Gov. Boggs on May 6, 1842. No suspects were found, but Boggs, wounded in the attack, stated in an affidavit that he believed Joseph Smith to be “an accessory before the fact” in orchestrating the assassination attempt.

The 1843 case was argued in Springfield before Judge Nathaniel Pope, who found that the affidavit did not establish fact. Joseph Smith was again freed.

Douglas was depicted as testifying that he had been in Nauvoo and in the presence of Joseph Smith at the time the assassination was attempted. In actuality, as Walker explained later during the panel discussion, Douglas did not testify, but he did sign an affidavit in the presence of Judge Pope.

The third extradition attempt was for alleged crimes including treason, arising from the 1838 conflict with Missouri mobs.

The hearing was held in Joseph Smith’s red brick Store in Nauvoo, Ill., after attempts by a Missouri sheriff and constable to take him to the state failed through a series of events.

The portrayal of the hearing included gripping dialogue about the atrocities and injustices suffered by the Latter-day Saints in Missouri.

In addition to Walker, participants in the panel discussion included Dee Benson, U.S. district court judge for Utah; Patricia A. Bronte, a Chicago attorney who has served as habeas corpus counsel for several men detained at Guantanamo Bay; John A. Lupton of the Illinois Supreme Court Historic Preservation Commission; and moderator Gery Chico, chairman of the Illinois State Board of Education.

Under Chico’s leadership, the production has been developed into a 12-week curriculum to be used in all high schools and middle schools in Illinois next year.

At the beginning of the performance, Illinois Supreme Court Justice Anne M. Burke addressed the audience, explaining that this is the third in an annual series of events put on by the sponsoring organizations. The previous two were a depiction of a retrial for Mary Surrat, the first woman executed by the federal government, accused in the assassination of Abraham Lincoln; and for Mary Todd Lincoln in her 1875 insanity hearing brought by her son Robert due to her erratic behavior.

“Our primary purpose in these trials and hearings is to educate the public about historical issues that pertain to our modern-day lives,” Burke said. “By studying our past, we learn about our present and gather the necessary information to make informed decisions for the future.”

It is important, she said, to educate today’s students about the law.

“This evening’s event,” she said, “involves the intersection of two constitutional principles: the individual’s right of habeas corpus versus the state’s right of extradition.”

Email: rscott@deseretnews.com

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