CHAPTER THIRTY-THREE
Despite all the talk of fat boys, three women presented some of the strongest testimony in Ben’s behalf: Emma Jones, Katie Ewing, and Sophia.
Jones, the housekeeper Sophia had selected in the spring of 1913, testified with precision and confidence—despite efforts by men in the room to portray her as unreliable by asking irrelevant questions they would never have asked a man, such as what she did on her last birthday and what she had served for dessert the day Elvin Byers showed up unannounced.1
Jones said Byers came alone that day, not with two others as he claimed. She recalled seeing Byers and Ben leave the garden after no more than fifteen minutes, the time it took her to wash the lunch dishes—not over an hour, as Byers said—and walk together toward the tennis court, where work was being done that she presumed Ben was going to inspect.
Ben’s gardener, Ralph Lones, also disputed Byers’s story, saying he could see Ben and Byers the whole time, and they never sat on the ground.2
John Smith made a helpful witness, describing his boss and friend as “very particular” about social etiquette and responsible for “very high” discipline at the post. Lieutenant Smith said he accompanied Ben nearly every time Ben rode. Ben saddled and bridled his own horse and urinated, as Smith did, in a corner with his back turned, not in the place John Barrett had described. Smith also bolstered Ben’s defense to Worcester’s claim. Describing the dress he wore at the Halloween party as more “modest” than Worcester’s costume, Smith said Ben “looked me up and down and sort of laughed at me and made a motion with his thumb toward me,” just as Ben would say he did to Worcester—a poke in the stomach, not the genitals.3
Smith said John Fuller, not Ensley, usually drove Ben in the buckboard. Fuller took the stand and agreed, recalling each time Ben had summoned the buckboard during maneuvers and target practice. Fuller testified that he did not think Ensley had ever driven Ben.4
Lieutenant Colonel Jordan, having recovered from his illness, made the trip from Massachusetts to Plum Island to testify to Ben’s being an “excellent officer, capable and efficient and interested in his work.” Jordan said he used to see Ben several times a day and Ben never did or said anything “unrefined or ungentlemanly”—nor did Jordan call Ben about pheasants, as Kirkman had said.5
Not until the tenth defense witness took the stand, however, was there testimony about a conspiracy, and it was Ben’s bad luck that the witness with the most direct evidence of a plot happened to be a woman, Katie Ewing. In 1914, the majority of U.S. states did not allow women to serve on juries, and some of the same specious notions used to support their exclusion—undue emotion, lack of objectivity, home and family as their primary sphere—meant that female witnesses faced an uphill battle to be believed. This had been evident from the grilling given to Emma Jones, who was not only a woman but African-American.6
Hudson took Ewing through her background, hoping its military orientation might elevate her standing in the jurors’ minds. She had been “born and raised in the Army”—at Fort Monroe, where her father was a retired soldier and tailor. She married a sergeant and they moved to Fort Terry. She had lived on Plum Island nearly as long as the federal government owned the place. Her first husband died, and she married a sergeant named Ewing. Over the years, she worked as a domestic employee, a hospital matron, and in the dining hall.7
That set the stage for the bombshell she delivered: When she and a friend were crossing Long Island Sound on a steamer, she overheard Elvin Byers and Charles Moody conversing through an open window. “Tell the court what you heard,” Hudson prompted.
Both of them stood outside about 3 feet from where I was standing. Sergeant Byers said to Sergeant Moody “So Koehler is over there yet?” and Sergeant Moody said “Yes, his trial has been ordered” and Sergeant Byers said “I am sorry that I had anything to do with it.” Sergeant Moody said “You don’t want to talk like that, you have taken an oath and so have I and you have got to stick to what we have said. We have got to stick tight.”
This was testimony of critical importance, an account of one accuser speaking to another about an “oath” and the need “to stick tight.” Mayes did all he could to limit the damage.
“Might not that mean that he would not be influenced by anybody in his testimony?” he asked Ewing on cross-examination.
“I don’t know just how anybody else would take it,” she answered, “but I took it just the way I have repeated it.”
There was no doubt in her mind as to the import of what she heard: “I thought from the way those men acted it was just spite work.”
Ewing already had a low opinion of Byers. She said he had asked her out even though she was married, and on the steamer, after Byers realized he and Moody had been overheard, he came inside, offered the women whiskey, and suggested he and Ewing “go over [to New London] some night and stay over all night and have a good time.”
Ewing had told all this to Mayes, but Mayes still put forward Byers’s claim that Ben grabbed his ankle while fondling his own penis as they lay on the grass. Ben had to hope that Ewing’s testimony would matter more to the jury. One juror, however, strained to minimize its significance, asking Ewing whether Byers said “anything he said was not true” when he remarked that he was sorry he “had anything to do with it.”
“No, sir.”
“He didn’t say why he was sorry?”
“No, sir.”
If Byers was speaking to a co-conspirator, he did not need to say why he was sorry. It would have been understood, as it was by Ewing. “We had heard this rumor around the post and I said those two men were implicated in it, that is the way I looked at it,” she said.
The jurors asked more questions about another part of Ewing’s testimony: a child-snatching by Kirkman, who had told the elaborate story of Ben taking him upstairs and undressing in front of him and inviting him on a trip.
Ewing testified that a young girl was under her care one summer evening, playing outdoors, when a soldier rushed in and told her that Kirkman had pulled the girl into one of the barracks through a window. Ewing hurried over and found the girl in Kirkman’s lap, struggling to get loose. There was another man in the room and a bottle of whiskey on the table.
“Do you think it was whiskey?” asked a juror.
“I don’t think it was wine,” Ewing replied. This was one witness who did not hesitate before answering.
She grabbed the child and left, and testified that the girl’s father, a widower, was so furious that he threatened to go over and “shoot” Kirkman, but Ewing calmed him down. “You don’t know the character of those men like I do,” she quoted the girl’s father as saying. “They must have broken into that building to get in because they were supposed to be in camp.”
This was the incident, Ben would testify, that caused him to form a poor opinion of Kirkman, though Worcester and Kirkman both denied any recollection of it. Worcester and Kirkman were apparently willing to wager their word against that of a woman, and at least with Mayes, they succeeded. It remained to be seen whether the same would be true with the jury.8
Several other witnesses testified to Kirkman’s poor reputation. “Whenever he is in a little trouble in the Company he brings somebody else into it and lies and gets out of it himself,” asserted Edward Shanley. Shanley also explained that he served as Ben’s orderly occasionally, which was why he went to Ben’s house—bringing envelopes to Sophia, cigars to Ben. It was true, he said, that another time he did not tell Worcester where he was going—because he wanted time off to see a sick brother, a request he was sure Worcester, his captain, would not approve.9
Shanley testified that he sought Ben’s advice “on account of men around the post telling me that Major Koehler would do all he could for a man that was in trouble and would help him out and advise him what to do.” According to Shanley, Ben said he could not grant the leave due to protocol—only Worcester could—but he would speak to Worcester about it. Shanley believed Worcester was so biased against him that he just dropped the request.
Shanley did not want to stick around Fort Terry to learn what his testifying for Ben would mean for his future. He had spent all the time he cared to in the guardhouse and did not want to be a “man in trouble” again. When Shanley stood up from the witness chair, he no longer worked for the Army. He had secured an honorable discharge effective that day, signed by a lieutenant who would testify for Ben later in the week. Shanley would not have to sneak off the island in a rowboat, but his departure showed that the Sun’s prediction—that some men would “walk the plank”—was coming to pass.
The same held true for Krouchonoskie. Like Shanley, Krouchonoskie secured his discharge the day before he testified.10
Corporal Clayton Zerphy of the 88th Company told of a different sort of plank-walking. He had declined to give incriminating information about Ben to Mills and paid for it by being denied a furlough in December 1913 for the holidays. He testified that both Elvin Byers and Richard Ellis—Worcester’s friend and successor as captain of the 88th Company—linked the punishment to Zerphy’s failure to go along with the plot. As Zerphy testified, Byers told him, “‘Corporal, you are not getting any furlough.’ I said ‘Why not?’ He says ‘The Company Commander is not satisfied with the evidence you gave Colonel Mills.’”11
Zerphy said Byers told him that if he changed his story, Worcester and Ellis would make sure he got his furlough. Zerphy did not do that. He signed up for a five-day pass instead of a longer furlough, only to find that his name was crossed off the pass list, so he spent the holidays at Fort Terry. In addition, Zerphy said that Byers and Ellis, who had previously recommended him for a new assignment, changed their minds after he refused to incriminate Ben, and they told Captain Patten they did not want Zerphy to get the assignment. (Ellis was not around to hassle Zerphy any longer, having been ordered to move to Fort Slocum.12)
Zerphy’s testimony—corroborated by a clerk who overheard his conversations with Byers and Ellis—provided strong evidence as to how Worcester, Ellis, Byers, and others pressured men to “stick tight” against Ben. Other defense witnesses had undercut elements of the prosecution’s case, but Ben’s classmate Andy Moses came the closest to providing direct refutation of a charge. Moses testified that he sat no more than three feet away from where Ben was inspecting ordnance with Charles Byers. It was an “absolute impossibility,” Moses said, that Ben could have touched Byers in the thigh and crotch without Moses seeing it.13
Mayes chipped away at this certainty, getting Moses to concede that he could not “swear” the touching did not happen, because there were occasions when Moses glanced down at the list of inspection items. Nonetheless, asked if Ben could have “put his hand on the thigh of the Sergeant and on the same side each time run his hand up along the thigh to his testicles without your seeing it,” Moses responded confidently: “I think not, that is my belief, that he could not have done it without my seeing him or noticing him.”
Moses also said that it was he who decided not to forward Worcester’s appeal after the Shanley matter. This, Hudson argued, put to rest Worcester’s insinuation that Ben was “protecting” Shanley due to “improper relations going on.”
Moses had known Ben the longest of anyone in the room, for more than twenty years, and he swore that he had never known Ben to do anything “suggesting vulgarity or coarseness.”
One by one, other men took the stand to say the same thing, from noncommissioned corporals to lieutenant colonels, testifying to Ben’s good character and behavior as a gentleman. “WITNESSES GIVE THE ACCUSED GOOD NAME,” read a typical headline as the record grew thick with praise for Ben.14 According to the article, “As a large number of persons in different parts of the country have indicated a desire to testify in behalf of Major Koehler, it is expected that the trial will extend through another week at least.”
Mayes continued to object to such “negative testimony” as worthless. So what if Ben had never made a lewd remark or sexual advance to some men, if he had made so many to the accusers? Mayes told the jury it could all be explained by the concept of the double life.
Many a gay man or woman has lived a double life, residing in a kind of two-room house, maintaining a job and family relationships as an ostensibly straight person in one room, while socializing in same-sex situations when and where a safe room for that purpose presented itself. But there was no evidence that Ben had lived that sort of life, going to clubs or bathhouses on the sly, having gay friends or a gay partner. Even if his relationship with William Kenly came close to the latter, no evidence was introduced at the trial, or even an insinuation made, that there was any sexual aspect to their association.
Rather, in Ben’s case, the double life was presented to the jurors as a two-room house with the second room a dark dungeon. There was the visible part of his life, which Mayes dismissively termed a “halo of innocence” created by the defense—and then there was the secret room supposedly containing uncontrolled and erratic sexual obsession in both word and deed, grabbing men’s penises on a dance floor, in a phone booth, in a wagon, and during an inspection with an esteemed fellow officer seated nearby. The ways in which Mayes and the witnesses portrayed Ben recalled the spin tactics American hawks had used against the Spanish when trying to justify war—portraying them as lustful, dissolute, rapacious—and later against the Filipinos, when it suited the speakers’ purposes to characterize the native people of the Philippines as animalistic, deviant, and lacking in self-discipline.
Yet if Ben had done the acts with which he was charged, they were the acts of a man not trying to hide his “unmanly” sexual orientation but almost defiantly daring to be caught, or so incapable of squelching sexual urges that he could not stop himself.
And so, Hudson was right to point to a conflict between the prosecution’s portrayal of a man who lacked restraint and Mayes’s thesis that Ben artificially created an image of wholesomeness through intentional self-control with other men.
Moreover, if Ben was sexually attracted to men at a time when keeping that quiet would be in his professional interest, why would he have taken risks with the people he had most antagonized, people highly likely to resist and report him? There were six companies of soldiers at Fort Terry. Why would Ben focus his overtures on men currently or formerly in the two companies associated with Worcester and Frick—the man Lieutenant George Gorham described as Ben’s only “enemy” at the post, who had vowed to “get” Ben several times?
Gorham and a post doctor also contradicted Private Leonard Davis’s account that Gorham had walked up to the battle command center to seek a medical leave from Ben, a point Davis had inserted to try to shore up the date change of his charge from 1913 to 1912.
As the favorable defense testimony continued, despite another blizzard on Friday, it seemed like more and more of a stretch for the jurors to see Ben as the man described by the accusers. One of Ben’s supporters was quoted as saying that if Ben was convicted, it would be like “Samson falling, bringing down the pillars of the temple with him.”15
At the same time, the concept of a secret life was powerful. It could remind each juror of a darker moment or impulse in his own past, preying upon the human ability to imagine that the impossible just might be possible, even in the absence of corroborating evidence.
Which was the reality? A gentleman or a sex fiend?
Of course, Sophia was going to say the former, but how convincing would she be? She would lead off the next week’s testimony on Monday morning. Ben would have to wait all weekend to hear the third woman on his witness list defend his honor.
At least there would be no photographers when court resumed. Reporters could stay, but the experiment with having “the picture men” on Plum Island had ended after one day. Kirby was said to enjoy having his photo taken in his gold and scarlet Coast Artillery cape, but no one else much liked having cameras around. When the photographers were returning to New London, a captain “took up their passes and told them they would not be allowed on the island again while the trial was in progress.”16
It was a small act of defiance from a small island where, it was said, “the whole garrison is in a state of nerves.”17