CHAPTER THIRTY
Except in their own minds, jurors in civilian trials may not question witnesses, one of many ways in which the court-martial system that had its grips on Ben operated by its own rules. The system was broken, abused by superiors, and led to “brutal injustice” against countless men, according to an article in the nation’s most widely read magazine that happened to be circulating as Ben girded for more witnesses to portray him as perversely attracted to men, sex-crazed, lewd, undisciplined, dishonest, and alcoholic.
With a soldier on the cover, the February 28, 1914, edition of Harper’s Weekly prominently featured “The Honor of the Army” by Charles Johnson Post, a former soldier. The “court-martial can—and does—punish with a merciless severity,” Post wrote.1 Commenting on the article, the magazine’s editors opined that “the United States Army system is not fit for a democracy,” urging readers to “grapple with and settle the question of what kind of army life, army discipline, army training is needed in our modern democracy.”2
The article’s thesis both helped and hurt Ben’s interests. Post gave examples of courts-martial of enlisted men ordered for no good reason, while the “same—and greater—offenses against officers [are] gently silvered o’er.” He wrote of the “power, fantastically used and abused” whereby officers punished subordinates who failed to comply with their wishes. At the same time, the article echoed Wood’s advice to Garrison that the Army could be perceived as more concerned with officers than enlisted men.
Harper’s well demonstrated why Wood might worry about that perception, for Post’s article linked Wood to the overly punitive state of the Army and high rate of desertions.
On the adverse influences of Wood as chief of staff, Ben might have agreed, though the Army and Navy Register called the Post article a “libel of the Army,” disputed the desertion figures, and wrote that relations between officers and enlisted men were not nearly as bad as Post maintained.3 Ben might have agreed with that statement, too, having shown a willingness to take the enlisted man’s side against an officer, as he had done for Samuel Silverman and Edward Shanley.
Edison Kirkman, the sergeant whom Worcester had declined to punish for fighting with Shanley, took the witness stand on Sunday, reminding Ben and his counsel that court-martial procedures could be used to stack the deck against an officer, too.
For one thing, the Army’s case was being presented by a prosecutor without formal legal training who allowed his witnesses to say pretty much whatever they wanted. That proved especially true with Kirkman, who clearly relished the role of raconteur. Hawthorne handled the defense on Sunday and had to pick his battles, objecting to the most egregious violations of the rules of evidence, but not all of them, lest he come across as nettlesome. While Kirby sustained a number of objections, the rulings often came late, after the witness had answered. Kirby was a far cry from an experienced judge who could discern an improperly phrased question at once.
Sometimes, it was Kirby who asked a question Hawthorne considered improper. After Kirkman testified that Ben fondled his penis in December 1912 or January 1913 in the Koehler home, Kirby asked whether Ben “approached you in connection with immoral or unnatural practices prior to the night . . . when you visited his quarters.”
“Yes, sir,” Kirkman answered, and Kirby asked for details. Hawthorne objected that he “would like to have the court keep this inquiry with the limits of [the] specification.”4 Another juror agreed, and Kirby dropped the question—but not before harm was done. Kirkman had referred to a past overture, and the lack of details gave Ben no opportunity to refute them.
The rushed schedule also worked against Ben. Holding court on Saturday and Sunday left his counsel virtually no time to rest or review the prior days’ testimony. Hawthorne was already feeling sick and asked, successfully, that the proposed Sunday nighttime session be canceled.5
Ben continued to be hurt by the rule that deprived his counsel of an opening statement. The sixth accuser was now testifying, and there would be ten more before the defense witnesses could speak. On Sunday, that seemed like a long time. During Kirkman’s colorful testimony, Hawthorne managed to sneak in a preview.
Kirkman testified that the evening he visited the Koehler house, when Sidney Jordan supposedly called about the pheasants, Ben invited him upstairs while Ben changed into evening dress for a meeting with Jordan, stripped to his underclothes, “and asked me how did I think he was built, his shape . . . Then he faced around . . . and he had an erection on and he asked me what did I think of it . . . I says ‘You ought to get married.’ He says, ‘I don’t care for women anyway.’”
Kirkman continued: “I called his attention to a window just opposite and he went over and pulled one of those small green shades in front of the window, and he came back again and this time he opened my pants and taken my privates out and I had taken them loose from him and put them back. I told him he better go down stairs . . . so he did.”
Downstairs, in Ben’s office, according to Kirkman, Ben “pulled a little shutter down over the glass door and turned the lights out,” proceeding to put his arms around Kirkman, take out his “privates” and ask Kirkman, “if I was not interested in him and his work of that kind. I told him no, a man didn’t appeal to me with any interest. ‘Well,’ he says ‘I guess if I slept with you all night I probably would.’ I said ‘If you did I would have to be half drunk.’”
Kirkman said Ben then invited him to take a trip so they could spend the night together, “that there would be something doing before morning,” to which Kirkman said he replied that he had no civilian clothes, but some were on order, and Ben said the trip could await the clothes’ arrival. According to Kirkman, Ben asked for a kiss, which Kirkman declined to give, at which point Ben hugged him, “tried to bite me on the neck and told me to come to his quarters again any show night, I was entirely welcome, he was sorry he didn’t know me better before that, we had missed a number of good times.”
On cross-examination, Hawthorne wanted to know if Kirkman had ever been inside Worcester’s house, and Kirkman said he had been there “quite often.”
Mayes objected, and Hawthorne gave the reason for his question: “The knowledge of the witness of the accused’s quarters we believe to flow entirely from his knowledge of the quarters of Captain Worcester. We believe his whole story to be a pure invention and is laid by him in surroundings with which he is quite familiar . . . ; hence his remarkable detailed knowledge of the interior of the accused’s quarters.”
Kirby sustained the objection, but Hawthorne had gotten his point across.
Kirkman gave conflicting reasons for being in Ben’s house and was not sure whether it was before or after Christmas. Later, the jurors would learn that Kirkman first told Mills the date was November 1, when Ben was attending the Worcester party. Mayes and Kirkman could not change the date of the party, but they could and did change the timing in Kirkman’s story.
Kirkman provided titillating testimony, sex terms and all, saying Ben asked him:
. . . how many different ways I had ever connected with a woman . . . asking me if I had ever heard of any man keeping a boy and used the expression of corn holing him. I asked the Major what he meant by that and he explained he meant going up his rectum. I told him I had heard of it, and he asked me if I had ever been tampered with the French Style and I asked him what did he mean by that and he told me a person going down on another.
Kirkman admitted that at times he used “some obscene talk myself” but it wasn’t “of that nature”—meaning male to male. Anything “of that nature” was “not pleasant by any means.”
And so it would go all day Sunday, not pleasant for anyone, least of all Ben, who was said to look “ten years older than he did a week ago,” having “worried greatly since he was placed under arrest.”6 For now, all Ben could do was worry and listen, unable to contradict or point out, for example, how unlikely it was that he would propose to travel with a man he found as irresponsible as he found Kirkman, or follow Kirkman around the house with Sophia at home, trying to fondle and kiss him after rebuffs. Had Worcester not already spoken of Ben’s low opinion of Kirkman? Was anyone listening?
Next up was Elvin Byers, a member of Kirkman and Frick’s company and former first sergeant to the absent Lieutenant Putney. Byers described an advance made by Ben on July 15, 1913—a precise date, for a change—and now the reason for the curious visit to Ben’s garden became clear. Byers said he went to the garden with two men to pick up flowers for an officer, and that after the other men took the plants, Ben invited him to tour the garden and “suggested we sit down in the grass,” where they spoke of sex, erections, and gonorrhea for about an hour.7
Ben was “talking about fat women and such stuff as that,” said Byers. “He didn’t see what a man wanted with a fat woman, or words to that effect.” Then, Byers said, Ben placed his hand on Byers’s ankle, and “I was laying on my left side and I think he was in the same position. I was on his left and I turned around and looked at him and I noticed he had an erection, had his hand on his penis, and had an erection, and he said ‘Guess we better take a walk.’”
That would have been an uncomfortable if not impossible position for a man who was five foot three, lying with one hand on his genitals and one hand on the ankle of another man who rested three feet away. Kirby asked Byers to “illustrate the manner in which you allege the accused grasped your leg,” which Byers purported to do, grasping his own leg around the ankle. He acknowledged that he was wearing his uniform and leggings at the time.
Corporal Isaac Spears, also a member of Kirkman’s company, told of Ben following him into a hotel restroom in Greenport, Long Island, and placing his hand on Spears’s hip while they urinated into adjacent urinals, separated by partitions, even as a soldier stood on Spears’s other side. A few minutes later on the hotel porch, Spears said, Ben “asked me how I would like to do business with a fat boy.” He gave the date as August 1912 and admitted that he spent most of the afternoon drinking in the hotel bar. Spears said he probably drank eight to ten beers.8
Ben would testify that he went to Greenport with a group that included Spears, then a private, in July 1912, but he had no memory of seeing Spears in the restroom and only recalled talking to Spears on the sidewalk near the boats—not about “business with a fat boy.”9
Next to be sworn was Sergeant Charles Moody, whose testimony prompted argument. The specification read that “on or about the 15th of October 1913,” Ben touched Moody while on the steamer Brennan, where Moody worked as provost sergeant, but on the stand Moody talked about “two different occasions that I seen Major Koehler or that I spoke to him on the ‘Brennan,’ and I don’t remember whether this was that particular time or not.”10
Hawthorne objected to the sudden addition of a second incident, and Mayes countered that Ben should simply “defend his conduct at any time he may have been on board that boat, on or about the 15th day of October.” Kirby overruled the objection and permitted Moody to continue.
Moody said both incidents occurred in October, after he heard other men make “common talk” about what Ben “was referred to.” One time, Moody said, Ben asked “what makes you so fat” and “if I was getting much, and I don’t just remember my answer, but he says ‘Maybe you ain’t getting it in the right way.’” Another time, according to Moody, Ben pinched his leg and said, “if one man goes down on another man it is nobody’s damn business,” then grabbed him by the arm and breast while the boat’s captain, standing nearby, looked out the window.
Moody’s testimony shifted when Hawthorne asked the questions. The captain’s looking out the window morphed into the possibility that the quartermaster was the one steering, in which case the quartermaster should have been the one at the window. The grabbing of his arm and breast shifted to “pinching.”
Hawthorne succeeded in getting Moody to concede that he “might” have told Mills the incidents occurred “between August and December or something like that,” but it was Mills who chose the date of October 15. “I never gave no certain date,” Moody acknowledged.
Moody also conceded that he never mentioned the incidents to anyone before Worcester came to see him on the Brennan: “As near as I remember, it was on the boat and he asked me if I had ever had any dealings with Major Koehler.”
One can read between the lines that Worcester expected “yes” for an answer.
When Moody finished testifying, Kirby ended the session. It was 6:40 p.m., a long day for all, and a terrible day for Ben Koehler.
“Be like the promontory against which the waves continually break,” wrote Roman Emperor Marcus Aurelius in his Meditations, a favorite of military men, “but it stands firm and tames the fury of the water around it.”11 Waves were breaking all around Ben, literally and figuratively. He tried to stand firm, but according to The New York Times, on Monday he broke his silence and “in conversation . . . declared that he would clear himself and confound his enemies.”12