CHAPTER THIRTY-SEVEN
Clarence Darrow said the criminal justice system was no system at all, but a “method of arraying a defendant in court . . . tried by judges who almost invariably believe in the prisoner’s guilt, defended as is usually the case by incompetent lawyers . . . scarcely more liable to lead to correct results than the ancient forms.”1
As Ben waited for the jury’s verdict in the dark quiet of a Plum Island night, he may have harbored thoughts along the same lines. Family money had enabled him to hire a private lawyer, and there was no doubt that Hudson had put in long hours, but Ben had good reason for wondering whether he had been properly defended against all that had been brought to bear against him.
For months, ever since the December meeting with Haan and Sarratt, Ben had anticipated a trial that would reveal a plot against him. Yet, in the end, his own lawyer had all but thrown up his hands. “This conspiracy or whatever it is” came across like a surrender. Katie Ewing’s pithy words—“spite work”—sounded far stronger, but Hudson had not even mentioned her testimony.
Should Ben have hired a more hardscrabble attorney? What if Kenly had been allowed to serve as his counsel? Would the closing argument have been more compelling?
Undoubtedly, such questions entered Ben’s mind even as he tried to stay optimistic, recalling the ample testimony in his favor. No one knew his behavior at home better than Sophia. As Hudson had pointed out, there were no carpets on the floors, and “if any one walks in these houses . . . you can hear them.”2 Sophia had testified well, even if Mayes dismissed her knowledge in a sentence, reducing her to a biased woman whose words warranted no weight.
Wholly apart from the quality of lawyering inside the courtroom, much had broken against Ben outside the courtroom, beyond his control and well beyond the turbulent waters of Plum Gut: Colonel Davis not telling him of the allegations, Mills not interviewing him, denial of his leave, confusion over his resignation, Mayes’s use of his alibis to redraft the charges, and Garrison’s prejudicial public statement and order to hasten the trial. On the other hand, the jurors’ questions indicated considerable skepticism about the accusers’ accounts.
Either way, it appeared that what was going to determine Ben’s future had little to do with his day-to-day conduct and the vigilance with which he had carried out the instructions to bring discipline to Fort Terry. Davis “appreciated the spirit which had been developed there under him,” according to the sworn answers Davis submitted in lieu of live testimony, but Ben had to wonder why the turnaround at the post was not more of a focal point. Why wasn’t there more testimony isolating Worcester and his band, showing that a link among the “scoundrels” was resistance to the order Ben was instilling? Ben could have made those points himself if he had been better coached. But if a fix was in from Washington, did the trial and testimony really matter, or had it all been for show, the grudges of the men at Fort Terry of lesser importance than the bigger grudge held by Leonard Wood against Louis?
During the two-week recess, while the jurors waited for possible deployment to Mexico, they had had something else to think about: Wood’s imminent arrival in New York as their boss, bringing with him the same authority to upend their lives as he had Barry’s. The timing was uncanny.
It is not known whether Wood spoke with any jurors during the recess to underscore his expectations. That was not the sort of conversation a careful person would commit to writing. Certainly Kirby, as jury president, needed to correspond with the War Department to discuss when the proceedings would resume. With Barry gone, and Evans only two weeks into his interim assignment running the Eastern Department, Kirby may well have communicated directly with Wood. Or Wood may have picked up the phone to call Kirby and ask how things were going. At the very least, Kirby had to know about the history of Wood and Louis Koehler if people at Fort Terry were speaking of it to reporters, which means Kirby likely knew about the claim that Wood had punished the jurors who voted to acquit Louis by separating them from the service.
Ben could not be sure about meddling from Washington, but he surely knew what Louis had endured. Now, Ben was in his own hell. He would never again be so naïve as to give an inspector truthful information only to have it used against him. Still, he remained hopeful that the jury would see Worcester’s and Frick’s “spite work” for what it was and acquit him.
It was a little before 11:00 p.m. when Kirby sent word that the jury had reached a verdict.
“[C]an all these men be wrong, and these other men right?”3 So had Hudson framed the case’s fundamental dilemma, the dutiful Ben known by many versus the out-of-control Ben testified to by the accusers.
The jurors debated that question for two and a half hours, though there were really multiple questions, for the jurors did not have to vote the same way on all charges. They would do so if they accepted the fabrication claim as a total defense, but not if they rejected it or concluded it did not extend to all accusers.
Back in the courtroom, Ben tried to read the jurors’ expressions and body language. He had entertained several of the jury members in his home. His sister had helped prepare their meals. Could they really have voted to end his military career?
All too soon it became clear that Kirby had no intention of revealing the jury’s verdict. He said only that a decision had been reached. For now, the jurors were going to their beds.
Nearby, in the house occupied by the former post commander, Sophia could do little but tell her brother to have faith.
Ben had left LeMars seeking the fullest life he could imagine, richer in honor, novelty, and satisfaction than all the money his siblings engaged in business might earn. He knew he was fortunate that his younger sister had come along for the recent part of the ride. On the most uncertain night of his life, at least he was not alone. Still, as he undressed, carefully hanging his uniform as he had every evening of his adult life, he had to wonder whether he would soon instead be hanging civilian clothes or prison garb. A conviction on any one of the charges would be enough to kick Ben out of the Army with a dishonorable discharge and send him to prison.
The next morning, Ben walked to the makeshift courtroom for the last time, but still he would not leave the building with knowledge of the jury’s decision. Only James Mayes, who had written so confidently in his prizewinning essay about “real soldiers,” would have that privilege.