CHAPTER TWENTY-FOUR
Before Philip Worcester swore to tell the truth on Thursday, February 27, the Army needed to decide who would hear him speak. Would reporters and curious civilians be allowed in the Fort Terry library, or would the court-martial be held in secret?
The presumption that American criminal trials should be open to the public predates the Constitution, having been brought to the colonies by the same Brits who traded fish hooks for Plum Island. But this was a military tribunal, given wider latitude by the U.S. Supreme Court.1 As head of the Eastern Department, at least for a few more days, Barry was considered the trial’s convening officer. He and Kirby decided to keep out the press and public.
The next morning, when Mayes called Worcester to the stand, those present included only the jurors, Ben, the counselors, and the court reporter who was transcribing the proceedings. Guards stood at the government wharf in New London and the landing on Plum Island.
The New York Times printed Ben’s denial of the charges and said he was in “good spirits.”2 This was despite the elimination of a second officer from the jury, one favorably disposed toward Ben—Sidney Jordan, who now commanded Fort Strong in Massachusetts. He had not arrived with the other jurors, notifying Kirby that he was ill. Kirby decided that the trial should proceed with eleven jurors rather than twelve.3 While Mayes would likely have challenged Jordan as too partial, the defense would not have the opportunity to find out.
Unlike in a civilian trial, there were no opening statements in which the prosecutor and defense counsel told their respective versions of the truth, pitched their strongest evidence, and tried to take the sting out of adverse testimony anticipated from the other side. This cut against Ben, for many accusers would testify before he and other defense witnesses took the stand.4 Without an opening statement, Hudson had no chance to tell the jurors to watch for signs of fabrication, such as inconsistencies, inability to provide details, or failures in recollection that seemed surprising. Setting up a skeptical perspective would have been especially valuable to Ben given his claim that the charges were based on lies. Ben would not, contrary to Crowder’s prediction, plead mental illness, or “temporary upset” from alcohol, as his brother Henry had put it.
Mayes made fast work of the direct examination, concentrating on the Halloween party. “Did anything unusual between you and Major Koehler occur at that party?” he asked Worcester.
“Yes, sir.”5
Worcester began with a preamble of how he was “dressed up as a girl,” presumably to minimize the costume’s shock value. He told of the cobweb game and dinner in the basement. Then he got around to answering Mayes’s question:
I cannot tell about the exact time but approximately about 10 o’clock I passed in through this doorway into the little laundry room, which was being used as a smoking room and as I went by Major Koehler, who was sitting on the edge of the table right near the door, he reached down—I think with his right hand, and grabbed me in what I consider rather an insulting manner by the testicles and I jumped away.
Worcester said he left the room quickly, and a “few minutes later when I came around again he grabbed me very suggestively by the buttock—I think it was the left buttock.”
Hudson interrupted, saying, “any conclusion like this ‘very suggestive’ we object to.” Mayes countered that the suggestiveness of the act was not Worcester’s opinion, but “something that the man himself may know.” As Mayes elaborated: “[B]y the very nature of these actions the character of them is a matter within the knowledge of this man as much as the act itself. An act which verges on an approach or suggestion cannot be described actually by physical description, but it is something that the man himself may know, is within his positive knowledge rather than his opinion . . .”
In response, Hudson set up an alternative defense, that Ben may have touched men innocently, but his intentions were misperceived because of rumors about his “tendencies.”
[A]ccusations such as have been made in this case are most peculiar and if a rumor gets abroad that a man has any such tendencies as have been charged in this case the most innocent act will be misunderstood and will be to the man himself suggestive. A man accused of these offences may meet a man and put his hand on his shoulder. The man draws back. That means something.
Hudson may have accurately described the suspiciousness that had crept into male-male dealings, but whether his words would help his client was another matter. He seemed to be saying it was reasonable for people to believe Ben had “such tendencies.” He went on to say that a single word could be interpreted differently if spoken by a man suspected of homosexuality: “I can imagine a man accused of such an offence to walk up to me in the morning and say ‘How do you feel?’ I would say that ‘feel’ means something else; I draw back.”
If Worcester had heard rumors about Ben, Hudson argued, then Worcester was not reliable concerning “what Major Koehler meant” by touching him. Mayes replied that just as a person can reliably sense a physical threat, “That applies with equal force to this case, where it is a threat against his dignity and sense of manhood.”6
After conferring privately, the jurors sided with Hudson. “The witness will be instructed to confine himself to facts and to leave out suggestions,” directed Kirby.
Worcester resumed testifying and said that “about an hour later I was in another part of the main cellar talking to the Major. It was in a rather dark part of the cellar behind one of the brick pillars supporting the floor, and again he reached and grabbed me by the testicles.”
This time, according to Worcester, he spoke up: “I remember asking him what he meant by such an act or words to that effect, if he thought that I was that kind of a person that he could do that to, or words to that effect. I remember we had several rather heated words.”
Worcester claimed that Ben “remarked that he was doing it just in fun, he was just fooling, and he moved off in the direction of the smoking room. I can’t quote exactly what I said. I was very mad and sputtered out to him that I was not that kind of a person and would not stand for it, or words to that effect.”
According to Worcester, Ben left “about half an hour later without saying anything to me.”
Hudson had won a ruling that would apply throughout the trial, but it was not necessarily in Ben’s interests to cut off speculation as to why Ben might have done what Worcester said he did. Kirby instructed Worcester “to leave out suggestions,” but Worcester managed to make the same point by saying he told Ben he was “not that kind of person.” Embedded in that statement was the idea that Ben was making an “an approach or suggestion,” as Mayes put it, as well as presuming Worcester’s willingness to participate. The testicle grabs were not objectionable because they hurt, or because Worcester had trouble rebuffing them, but because they were “a threat against his dignity and sense of manhood,” to quote Mayes.7 The implication was that Ben had propositioned Worcester, just like what was happening on New York City’s streets.
But what sort of proposition was it? Surely Ben was not “suggesting” that he and Worcester have sex in a house full of guests, including Sophia. Was it a way of asking Worcester to consider sex at another time? If so, in an era when hiding one’s homosexuality was all-important in the middle-class gay world, why would Ben, if he were gay, choose Worcester, with whom he had differed and who was therefore likely to decline and tell others of the overture?8 And why would Ben come on to Worcester when he was tired and anxious to leave, and when Worcester was dressed and behaving in a manner that Ben considered distasteful?
Mayes was not going to ask those questions, and Hudson, having argued that Worcester should not be allowed to speculate about what Ben “meant,” closed the door on his own ability to ask them when the time came for cross-examination. Yet Hudson could not prevent the jurors from speculating on their own, nor could he count on them to parse the fantastical from the plausible without help. If the prosecution’s theory was that Ben had tried to use his authority to coax subordinates to have sex with him, it might be wise for Hudson to call that out and plant doubt in the jurors’ minds that a person would keep trying the same strategy when it repeatedly failed. And if Ben was not “suggesting” sex or trying to use his position to obtain it, then the motivation for the acts described by Worcester had to be something else. Was Worcester saying that Ben found the act of holding another man’s testicles pleasurable in and of itself? Was it a power thing? Was Ben simply unable to contain his impulses—or was the entire account a lie?
Hudson was likely wary of Worcester’s answers if he posed those questions, but it is also probable that Hudson—an older, traditional man from New England—lacked sufficient knowledge of the incipient gay world even to conceive of them. Non-fairy, middle-class homosexuals sought to hide their interest in men from all but those whom they trusted. By that standard, the acts Worcester described defied rationality—for Ben had no reason to trust Worcester—but only an unusual lawyer would have been able to ask questions in 1914 arising from knowledge of how a rational homosexual would have acted. Like Crowder, Hudson most likely believed that “rational homosexual” was an oxymoron.
Hudson hailed from a state with one of the country’s most restrictive Comstock Laws, which criminalized discussion of contraception and printed material about sex in the interests of “moral purity.”9 He and the jurors were undoubtedly influenced by a socio-legal climate that made discussing sex taboo, but by avoiding exploration of the reasons for Ben’s supposed “suggestion,” Hudson ceded territory to the imaginations of the jurors and what they knew, or thought they knew, about male “perverts.” The record now contained Worcester’s assertion that Ben grabbed his testicles and then said he was “just fooling.”
Why would a man do such a thing? The jurors, married men, could only wonder. Often separated from their wives, they presumably had a reasonably uniform conception of how a “normal” man dealt with desire when it could not be satisfied through spousal sex—by adultery, masturbation, or abstinence, the first two being understood to require secrecy and discretion. But the unmarried Ben Koehler was accused of coming on to men, a big unknown for most people in 1914. Hudson had left the jurors free to throw up their hands and say “Who knows how such people might behave?”
Hudson did not want Worcester to opine about Ben’s motives, but he had many other questions for the lead witness, who admitted that the first time Ben supposedly groped him, “I was where others may have seen me,” including the private supervising the furnace and “some other person smoking in the room at the time.” The jurors would have to wait to find out whether or not either person would testify that they had observed what Worcester described.
Hudson pressed Worcester for details, asking, “How was Major Koehler standing or what was his position when this first thing occurred?”
“As I remember it there was a small table just inside the door and he was sitting on the corner of the table with his right leg thrown over the table. Of this I will not be positive. I remember he was near the corner of the table.”
“As you passed by him he grabbed you by the testicles?”
“Yes, sir.”
Hudson imitated the body position Worcester had described and asked if it was correct.
“Yes, sir. I think he was sitting on the table but of that I can’t be positive.”
“You have so described it?”
“Yes, sir I said as far as I could describe it.”
“Well, an incident of this kind would impress your memory, wouldn’t it?
“Not to remember such details as that.”
“A most extraordinary action on the part of Major Koehler, you construed it, did you not?”
“Decidedly so.”
“Then you would remember a detail like sitting on the table?”
At that point Mayes objected that Hudson was arguing with the witness. Of course, Hudson was trying to show that Worcester’s lack of precise recollection made his account suspect, but Hudson went along with the objection and began a different line of questions. There was no gain in coming across as too aggressive, both because the trial was only beginning and because this was no ordinary jury. Hudson’s client was being judged for failure to be a gentleman by men who themselves had taken oaths to behave as gentlemen. It behooved Hudson to appear polite—even though the subject matter was anything but.
“Now did he actually grab your testicles?” Hudson asked.
“Yes.”
“So that he held them in his hand?”
“Yes, sir.”
“Which hand?”
“I don’t know sir. My impression is that it was his right hand but I can’t be sure.”
“You know how you were passing by the table?”
“Yes, sir.”
“You cannot tell whether it was the left hand or right hand?”
“No, sir.”
Hudson returned to the subject of Worcester’s costume. “Now could anyone see through the dress when you were in a certain light to see the outline of your body?”
“I think they could sir.”
Hudson was gearing up to ask whether Worcester may have misinterpreted a playful gesture invited by the dress, but Worcester swerved instead of going along.
“Were you personally friendly?” Hudson asked.
“Personally I had at that time come across so much information that I rather suspected he was a moral degenerate, yes.”
“From rumors you had heard you had formed an opinion of Major Koehler?”
“No, sir, not of rumors but of things that had been told me as facts which I finally brought up to the Commanding Officer of the Department.”
“You mean other things you had been told?”
“Yes, sir.”
“Whether they were facts or not is an opinion.”
“Yes, sir.”
Hudson then had the chance to pose his theory of misinterpretation: “Now entirely apart from anything you hear, if you were dressed as a woman in the way you described to the court and some other officer, as you had passed, had made a reach for you in the way you have described, would you consider it of any great significance?”
What was Worcester to say but yes—which is what he did say: “I certainly would if he grabbed me by the testicles.”
Hudson would not let go of his theory.
“Couldn’t that be done innocently and as a joke by one man to another, a man dressed as a woman, the way you have described?”
“Not by that movement, you know in the vernacular what is called goosing, or reaching for the legs.”
Worcester said no matter who had done what Ben did to him, he would have reported it to a higher level “or knock[ed] him down.”
Hudson may have thought that accusing a West Point graduate of misinterpreting levity was more palatable than calling him a liar, but if Worcester was the mastermind of a plot, if he was prepared to lie and enlist others to lie, asking him whether he might have misperceived his target’s actions wholly missed the mark. It only allowed Worcester to repeat and fortify his characterization of events.
Hudson was more successful showing that Worcester had trouble recalling details. When asked about the second incident, Worcester said, “[W]e were standing there talking to one another and he grabbed me by the testicles,” but Worcester could not remember the subject matter, how long they talked, or anything that Ben said before the first or second incident “until I said ‘What do you mean by that?’ the last time.”
“[A]nd just what did he say? Give us the exact words.”
“I can’t give his exact words. I remember they were to the effect that ‘I was just joking’ or ‘I was fooling.’”
Notably, Worcester said that party guests “were all sitting around the other part of the cellar” when the second act took place, again bearing on the believability of Ben’s having accosted Worcester with other people so close by.
After questioning Worcester about his imitation of a hoochie-coochie dancer, Hudson asked whether Worcester was called to Ben’s office to discuss the dancing and the party.
Mayes objected, complaining that Hudson was “virtually trying this witness for any conduct of his which Major Koehler may have objected to.” Yet conduct to which Ben objected was exactly what Hudson needed to prove to support the conspiracy defense. Hudson argued that he should have latitude to show “that Major Koehler’s discipline of these various witnesses . . . might be . . . a reason for their hostility to him and their testimony to put him in the worst light possible.”
Mayes countered that Hudson could ask whether Worcester received a reprimand “but we cannot go into the subject matter which prompted that reprimand.”
Hudson tried a different approach. “Was there any kissing at this dance?” he asked.
“Not that I know of,” Worcester answered. Immediately, Mayes objected. A juror asked Worcester to leave the room.
More sparring took place, for so long that one juror asked to be reminded “to what question he is objecting.” Mayes’s reply left no doubt about his view of the case: “The question which started all this was ‘Was there any kissing at this dance?’ It does not make any difference whether there was any kissing or not so far as one man grabbing another man by the testicles. It is absolutely immaterial.”
Hudson steered back to Worcester’s motives, saying that if “there was general conduct there that was unusual and then this man was criticized after or reprimanded after by his superior officer, wouldn’t that be a ground for maliciousness afterward on the part of that man?”
Now Kirby asked everyone to leave except the jurors. When the session reopened, he told Hudson to proceed, but it proved to be an empty victory, for just as Worcester claimed to have no memory of being criticized during the party, the same held true after the party.
“I have absolutely no recollection of this dance ever being mentioned to me or the other affairs of that night ever being mentioned to me by Major Koehler,” he said.
If Ben did call Worcester to his office to reprimand him for his attire and conduct, as Ben would testify, putting that criticism in writing would have been a good idea—but that was only glaringly obvious in hindsight. At the time, just a few months after Worcester’s arrival on Plum Island, Ben had no idea of what was building in Worcester’s mind, as the rest of Worcester’s testimony would reveal.