CHAPTER TWENTY-NINE
Ben Koehler, an artilleryman, knew how to shoot at moving targets. Samuel Hudson, an attorney, did not—yet that is what he was being called upon to do at Fort Terry.
So far, except for the Halloween party, there had been a notable lack of precision regarding the timing of the alleged gropings, despite a requirement that “the time and place” of an offense should “properly be averred” to “enable the accused to understand what particular act or omission he is called upon to defend.”1
Early in his testimony, Ward had said “the approximate date of this occurrence was October, 1911,” referring to times when Ben “used to come in here after school hours and talk with me [about] mostly women and men, that is, so far as sexual relations were concerned.”2
Hawthorne objected because August 1912, not October 1911, was the date of the Ward claim in the specifications. Kirby sustained the objection, so Ward, prodded by Mayes to “[c]onfine your descriptions to anything that did occur about August, 1912,” modified his testimony, changing the date to August 1912. As he had been relieved as a teacher by that point, he also changed the location to the Post Exchange, where he was then working as acting steward and sleeping in an office.3
Wilson, too, had been evasive. Asked “Can you fix the day more exactly in the month of August when this took place?” he said, “No, sir, I could not just tell you the day.”
“Could you say that it took place in the last half of August?”
“Not exactly sir, no sir.”
“Could you say it took place in the first half?”
“I could not give you any accurate statement on it . . .”4
Despite the vagueness, the month of August 1912 kept coming up: Frick’s dinner with the Koehlers, the unbuttoning of Ward’s pants, the pressing of Wilson’s cloth-covered crotch. The next witness, Private Leonard Davis, would also describe an incident in August 1912.
Why were so many of the allegations clumped together in that month?
For one thing, August was the camp and battle practice season when Ben was often out of his house and office, mixing with soldiers, but when Davis first spoke to Mills, he told of an advance by Ben during the August 1913 battle practice. Mayes put that date in the initial charges, but when he showed the charges to Ben, Ben had pointed out that during the 1913 battle practice, he was in a different location than Davis described.
In response, Mayes did not drop the Davis charge. He just changed it. Davis’s August 1913 date became August 1912. Ben also had an alibi for an October claim, so Mayes learned the value of keeping all dates as uncertain as possible, to preclude additional alibis.
The imprecision made it difficult for the defense to prepare, as Hudson complained to the jury, labeling the initial charges “very misleading,” causing “extra work which would not otherwise have been necessary . . . for example, where it is stated in the specifications a thing occurred in 1913, considerable work was undertaken to meet that date, when a little later we were told it was not in 1913 at all, it was 1912.”5
At least the identities of the twelve original complainants and four post-Mills accusers were certain, and all the “immoral acts” were alleged to have occurred after Koehler’s arrival on Plum Island, though with no more detail than “at Fort Terry.” For the most part, the defense had to wait for each accuser to take the stand to find out where on the 840-acre island, inside or outside its many buildings, Ben’s gropings and lewd comments were alleged to have occurred.
Just as the sea makes a clear boundary around an island, Hudson and Hawthorne regarded the sixteen accusers and 840 acres of Plum Island as the boundaries of their case. It was a breach of those boundaries when Worcester and Frick intimated to the jury some special knowledge on the part of Lieutenant Putney, who had left Plum Island and was unavailable for cross-examination. Hudson and Hawthorne did their best to reign in such references to people, locations, and times outside the record, but some damage was inevitably done. The bell that had sounded would keep reverberating in the background, suggesting to the jurors that there was even more to Ben’s alleged bad acts than they were being asked to rule on.
Such innuendos served the prosecution, presenting Worcester as the officer who, in the interest of keeping the Army “clean,” had finally stood up to a man who had been getting away with predatory sex acts for years against people too intimidated to complain. Moreover, the innuendos of past bad acts weakened Ben’s claim of a Fort Terry conspiracy. If Ben had victimized others who were not present, then those present did not look like members of a closed conspiracy so much as men standing on the exposed tip of a large, submerged iceberg.
Imagine Mayes’s interest, then, when he was shown an unsolicited letter claiming that Ben’s “acts of degeneracy” went all the way back to his days in San Francisco:
If you make an investigation you will find that Major Benjamin M. Koehler’s acts of degeneracy extended back to the time he was captain of the ninety-second company of Coast Artillery, when several fine young fellows were forced to desert to avoid his brutal treatment following repulsion of said acts, and one poor lad committed suicide out of fear. Personally, he attempted a crime against nature on me, getting down on his knees before me, unbuttoning my trousers, and when I repulsed him and walked out of the house he made life miserable thereafter for me. I sincerely pray to God that in justice to the poor, unfortunate, enlisted men you will see that this vile scoundrel is given his just deserts.6
The name at the end of this inflammatory letter, accusing Ben of causing a suicide and several desertions, was A. J. Searcy—typed, without a signature. The letter included no details about the purported author: no rank, dates of service, or ID number. The sender’s address was given as “General Delivery, N.Y.C.”
Remarkably, the letter bore a date of February 28, 1914—the very day the testimony of the first witnesses was called “weak” by whoever was talking to the press. Apparently, someone eager for a conviction decided the testimony needed buttressing, for A. J. Searcy had never served in San Francisco, nor did he live in New York City. He had been a Confederate soldier in the Civil War—in Gould’s Texas Cavalry. He was 72 years old and had lived his entire life in Texas.7
The Searcy letter was a fake, but by whom?
Addressed to “the Honorable Secretary of War, Washington, D.C.,” the letter had quickly made its way to Enoch Crowder, Mayes’s boss. Crowder was a thorough lawyer regarding legal issues in Cuba—his main interest—but less so regarding an alleged male degenerate whom he had already concluded was guilty. The same day he received the letter, Crowder sent it to Garrison and recommended that it be forwarded to Mayes in New York. Far from expressing skepticism about the author’s identity, Crowder referred to the letter as “evidence”:
While the charges upon which Major B. M. Koehler, Coast Artillery, is now being tried do not allege the acts of degeneracy referred to in the attached communication, I think the letter should be referred, through channels, to the trial judge-advocate, Captain James J. Mayes, Infantry, for his information. It is possible that the accused officer may set up such a defense as to make the evidence of Searcy competent and admissible in rebuttal.8
Garrison wrote “OK act accordingly” and signed his initials on Crowder’s cover note, which was dated March 3, a mere two business days after the letter’s date.
Thus, a forged letter accusing Ben of “brutal treatment” causing grave harm and making the author “miserable” after an attempted “crime against nature” went to the secretary of war and the prosecutor without any hesitation expressed about its reliability. Such striking claims—calling Koehler “vile”—had to have colored Garrison’s view of Ben Koehler and fortified Mayes in the belief he already held of Ben’s guilt.
Hudson and Hawthorne, if shown the letter, would surely have suspected it of being a fake. They would have discussed it with Ben, and Ben would have responded with whatever proof he had. If there had been desertions and a suicide by men from the 92nd Company under his command, presumably records existed to confirm or refute that, and to evaluate the circumstances—not to mention the records showing the true background of A. J. Searcy.
All of this might have been investigated had the letter and its toxic contents not remained a government secret, retained for posterity in Koehler’s file but never given to his counsel. That, too, resembled the Dreyfus case, in which a secret dossier prepared by the French military, including documents that “emphasiz[ed] suspicions despite the lack of proof,” were shown to the court on the last day of trial and “brought the board to their unanimous verdict.”9
There is no definite proof that the Searcy letter was shown to Kirby or the other jurors, but the placement of the letter in Ben’s official personnel file directly following other court-martial documents suggests that the letter may have been in Kirby’s possession. And, as Crowder predicted, Mayes would indeed seek to introduce evidence of purported actions by Ben in San Francisco.
Without doubt, the letter was read by Garrison, whose job would be to review the jury’s verdict and make a recommendation to President Wilson concerning the final ruling and sentence. For that reason alone, the letter should have been scrutinized and its authenticity investigated, or it should have been given to Ben’s team for a response. Instead, ex parte “evidence” was forwarded to Garrison without any vetting, apparently not raising any concerns on his part, either. Garrison well knew that Ben alleged a conspiracy. Would not an intelligent, objective person—especially a lawyer who claimed to respect the administration of justice and all that was “essential” to it—have considered that a typed letter with no identifying information about the author, written in the midst of the trial, might be part of that conspiracy?
When it came to “B. M. Koehler,” as Crowder referred to him, it seemed that anything would be believed.
More troubling than negligence in failing to investigate the claims in the Searcy letter is the possibility that a senior officer in Washington helped create the letter. On Plum Island, Frick and Worcester had reason to be concerned about their testimony, but they did not have access to correspondence in Army files in Washington, D.C., related to Civil War soldiers, including the 1909 letter from the Texas Commissioner of Pensions requesting “the military record of A. J. Searcy” in connection with Searcy’s application for a “Confederate pension granted by this State.”10 Adjutant General Ainsworth had confirmed Searcy’s service from 1862 to 1864 in Texas.11 Those letters were placed in two different Army files, and both sets of papers were missing from their boxes during an inspection (by the author) in 2017. Copies were then obtained from the State of Texas.
While the letters’ absence in 2017 does not prove their absence in 1914, there would be little reason for the documents to go missing accidentally, not just from one location, but two. Was this early case of identity theft engineered by an officer of high rank, possibly even Wood?12 Or did someone at a lower level, friendly with the accusers, pull the records and give the Searcy name to Worcester or an ally, who proceeded to type and mail the letter?
No matter who created it, the Searcy letter is the clearest evidence of a malicious effort to fabricate evidence to try to secure Ben’s conviction.
Meanwhile, on Plum Island, Ben’s counsel had their hands full with the witnesses who were using their actual names, though Kirby gave Hawthorne a little help drilling Private Davis.
Davis testified that one August day in the battle command station, Ben asked Davis his name, ordered others out of the building, told Davis to call a gun battery to get coordinates for target practice, unbuttoned Davis’s pants in a phone booth, fondled Davis’s penis, and “said something about quite a long one, ‘Suppose it is any bigger than mine?’ Had his own out, turned around and he said ‘I guess we better quit before some one comes in’ and put it away.”13
Kirby’s interest was piqued. He had several questions.
“Major Koehler was in front of you and he took your tool in one hand and his own in another, is that true?”
“Yes, sir.”
“What followed that? Just simply stood there holding penises, is that all?”
“He moved his hand around, of course.”14
Davis’s testimony was unique in that he said he found some pleasure in the encounter—but Kirby did not let that go unchallenged.
“What pleasure did you get out of it, where did the pleasure come in?”
“Well, I can’t explain the pleasure at all; I can’t describe the feeling.”
“Did it cause an erection on your part?”
“It caused an erection, that was all.”
“Cause any emission on your part?”
“No.”
“Any on his?”
“Not that I know of; I could not say anything about that.”
“Just simply stopped off suddenly or how?”
“Just stopped off, and walked over to the other part of the Station.”
“Did you button up your own trousers?”
“I buttoned up my own trousers.”
“Did he put your penis back in your trousers, or did you do it?”
“He done it.”15
The man most concerned about keeping salacious details from the public was asking questions likely to produce those details, but Kirby may have sensed that fairness to Ben required probing the uncomfortable subject matter.
So, when Davis said the act gave him pleasure, after saying he did not consent to it, could have moved away, but did not because he was so surprised and intimidated, Kirby made the man squirm a bit on the stand. Kirby’s attitude can be gleaned from one of his final questions: “Do you understand what you mean by an oath?”16
There were other reasons to be skeptical of Davis, especially the change in date from August 1913 to August 1912.17 That revision required a lot of explanation because other details in the story did not easily match up to the earlier date. Plus, Davis could not say to whom he spoke when he supposedly called the gun battery, which conveniently meant no one could confirm or deny that a call took place. That would dovetail with Ben’s testimony that there had been no call, and would be no reason for a call, because the kind of coordinates Davis said he obtained could not be used in the command station.18
Davis did make one remark that rang true. Asked about rumors he might have heard, he said they “were not very definite . . . I just heard them in a faint way . . . I could not say what they were about except that he was not what he should be.”19
That seems to have been Ben’s main deficiency as far as Worcester and his allies were concerned: For a host of reasons, Ben wasn’t the commander they wanted.