CHAPTER THIRTY-NINE
Mayes and the accusers did not win a clean sweep by any means. As Sloan soon discovered, there was quite a bit of nuance embedded in Garrison’s statement of “guilty.” The jurors had rejected several claims.
Most significantly, the jury acquitted Ben of trying to kiss Austin Frick upstairs in the bathroom and grabbing his testicles while they danced.
The jurors found Ben not guilty of hugging Sergeant Edison Kirkman and fondling Kirkman’s penis in Ben’s bedroom and home office.
Ben was declared not guilty of touching Isaac Spears while urinating in a Greenport restroom, and of reaching up from the back of the buckboard, fondling Walter Ensley’s private parts, and exposing himself as the electric lights magically turned on to illuminate the incident.
The jurors also rejected Harvey Kernan’s claim. They acquitted Ben of stroking Kernan’s back in the hospital tent after comparing his penis to a flashlight.
Final score: six wins for Ben, eleven for Mayes in the first set of charges, and ten wins for Mayes in the second set due to the absence of King’s claim in the assault counts.
Did this result make any sense?
On the surface, the vote reflected a rejection of a conspiracy premised on every accuser’s having lied. Notably, the jurors threw out the claims of the three accusers whom Hudson came closest to calling liars: Frick, Kirkman, and Ensley, the latter of whom the jury president all but called a liar himself. It seemed the jurors had placed stock in Sophia’s words after all, for her testimony was at its strongest against Frick and Kirkman. She had said Frick did not go upstairs during dinner and that there was no “little shutter” on Ben’s home office door. For the jurors to decide that a woman knew best about what happened in her home was not asking them to stretch their attitudes—not like asking them to credit Katie Ewing for knowing that the conversation she overheard involving Byers and Moody reflected “spite work.”
Spears and Kernan had testified to two of the milder acts—touching of the hip and back. As to them, perhaps the jurors accepted Hudson’s theory of misinterpretation, especially since Spears admitted to having drunk at least eight beers, rendering his memory suspect. Regarding Kernan, some jurors had slept in the camp tents and knew whether there were electric lights, making a flashlight unnecessary, as Ben said. In that case, the jurors were calling Kernan a liar, not simply a man who had overreacted to a pat on the back. He was the one who vacillated between saying he “knew absolutely nothing based on facts” and saying Ben stroked him.
The jury had no obligation to explain its split verdict, but a ruling that five men were not telling the truth when they said Ben molested them begged the question of why those five men claimed Ben had done so—to Mills, to Mayes, and at the trial. Advance planning was the most plausible explanation for lying by multiple accusers. It strained credulity that they had fabricated elaborate stories of penis and testicle grabbing independently, especially when Frick and Kirkman were friends as well as Worcester’s most trusted subordinates.
Frick had been heard on more than one occasion vowing to “get” Ben, and the jury apparently concluded that that is what he was trying to do. The man whose testimony Crowder had singled out as strong, the man who cajoled others into testifying, the earliest proponent of trying to trigger an investigation into Ben’s sexuality, was not believed. In his summation, Hudson had let Worcester off the hook but portrayed Frick as the instigator, and the jury apparently agreed. Kirkman was Worcester’s first sergeant, whose story Worcester admitted to having discussed in advance of Mills’s investigation. Ensley had all but been told to incriminate Ben by his boss, Barrett. Spears served in Worcester’s company and was friendly with Putney. Kernan was being challenged about the beer permit. He testified that he went to see Mills only because Worcester told him to do so. For the jury to have concluded that these men were not telling the truth was tantamount to finding that a plot existed and that Worcester was in the thick of it.
Moreover, without the rejected claims, the resulting timeline created an anomaly. The actions of which Ben was convicted left a gap from August 1912 to July 1913. The full set of accusations created the impression of a regular pattern, but now there was the odd picture of a man who restrained himself for eleven months and became sexually assertive again in July 1913, the very month that Davis said better evidence was required.
Deliberating for only two and a half hours, eager to get to bed Thursday night and home on Friday, the jurors may not have focused on the logical defects in their findings. In the end, the jury vote suggests a compromise more than a rational statement about the evidence.
Throughout the trial, at least one member of the jury spoke as if decidedly in Ben’s camp. Others were said to be unconvinced or undecided. If Kirby was determined to return a conviction, which seems likely given his curtness toward the end, other jurors may have cut a deal, insisting that the claims told by obviously biased and unreliable accusers be rejected.
But had not all of the jurors been described as giving Ben “hearty” handshakes before their departure? If so, that suggested all the more that they had voted to convict for pragmatic reasons, such as their own futures under Leonard Wood, not because they believed the charges.
There was also the matter of Hudson’s closing statement. He had made it relatively easy for the jurors to go along with several of the accusers. Worcester was “immature,” not venal. The “clean-cut” Charles Byers “genuinely believed” he was touched. Moody was “not in the same camp” as the others, despite Ewing having heard him talk about an “oath.” Had Hudson delivered a cogent portrayal of the plot, persuasively labeling all its members liars, had he conceded nothing and demanded acquittal as a moral imperative, maybe that would have challenged the jury to take on Wood—and Kirby—just as the Louis Koehler jurors had done.
Hudson came nowhere close to meeting that bar. The jurors saved their own skins at the expense of Ben’s.
In addition to the jurors’ concerns over their careers, there was the large, prejudicial shadow cast by Garrison’s threat of multiple court-martials if the verdict went in Ben’s favor. According to the New York Tribune, “Colonel Kirby denied that a remark of Secretary Garrison that the case must end with a conviction or other court martials would be ordered influenced the court.”1 But if a reporter saw that possibility, it was not trivial. Did Kirby want to sentence one man to dismissal, or numerous fellow officers to future trips to Plum Island to serve as jurors in additional court-martials?
The Tribune reporter, though astute, did not accurately quote Garrison’s statements. Garrison had not said that a conviction on any charge would save all the complainants from court-martials, but rather that “each and every one” found to have lied would be court-martialed. Would Frick and the other four whose charges were rejected face court-martials for perjury? That remained to be seen. The jury had made the need for additional court-martials less burdensome by returning guilty verdicts on nearly two-thirds of the counts. That may well have been the intention—return enough guilty verdicts that Ben looked “weak or insane,” as Hudson had put it during an argument, and the Army not so bad.
The jurors realized that the testimony deviated from the specifications. Kirby had used a pen to edit the typed specifications to conform to the testimony. In the case of Moody, Kirby wrote that Ben was “Guilty, except the words ‘legs and breasts,’ substituting therefor the words ‘leg and breast.’” Similar changes were made in other charges: “grasping” became “touching and pressing” in Wilson’s case, “rubbing” was deleted from Elvin Byers’s count, obscene talk was excised from the Wilson and Fairey counts. Dates were changed. It took time to find the correct pages in the transcript to make the changes. That is apparently how the jury spent much of Thursday night, consistent with the outcome being predetermined, requiring little discussion.
The verdict was mixed and logically suspect, but reporters were not told that Ben had been acquitted of twelve of the thirty-three counts, including those lodged by one of the two men the press had described as Ben’s “principal accusers,” one of the two men who were commissioned officers at the time of the alleged offenses.2
Holding back the details and making it appear that Ben was guilty as charged had the desired effect of forestalling any questions about court-martials for the five men whose claims were rejected, and it nipped in the bud any questions reporters might have had as to how the jury could find a “principal accuser” and four other men untruthful without that pointing to a broader conspiracy to lie involving the whole group.
The War Department’s presentation of the verdict further damaged Ben’s reputation and shamed him throughout the country. Papers reported that two officers had been the main witnesses against Ben without noting that the claims by one of those officers had been rejected.
An extreme example appeared on April 19. Ben had spent more of his Army life in New York State than anywhere, so it was not surprising that on the Sunday following announcement of the verdict, the New York Tribune devoted half a page to Ben’s career and downfall, pointing out his Astor service, rapid rise in rank, “brilliance” as a soldier, and anticipated advancement.3 Those facts marked the heights from which Ben had fallen, but the article contained damaging inaccuracies as to the reasons for the fall.
The article stated that military men had come from all over the world to testify against Ben, when the opposite was true. The witnesses against him were clustered in and around Plum Island, while men from far away came to testify for Ben, and more had wanted to come. The paper wrote that Ben’s punishment could have been life in prison, when the maximum term was one year for third-degree assault, which, even if multiplied by the number of convictions, added up to eleven years at most. The jury had needed “only thirty minutes” to reach its verdict, the paper stated, when the record showed the jury deliberated from 8:15 until 10:55 p.m.
The Tribune hinted at who might be the source of the misinformation: Mayes. It was noted in the story that he was a former newspaperman, which would have given him a certain veneer of reliability with other journalists in the absence of contrary evidence.
Representative Sloan, however, had access to the transcript and jury form. He enlisted senators and other members of Congress with law backgrounds to review the testimony related to the eleven men whose charges had been sustained. Sloan approached the task this way to minimize any actual or perceived bias due to his friendship with the Koehlers, as well as to hasten the review.4
While Sloan had persuaded Garrison to postpone Wilson’s final ruling, that did not buy unlimited time, as Army officials well showed with their next action. They could not send Ben to jail, nor discharge him without Wilson’s approval, but they could uproot and isolate him.
Once again, Wood proved to be a master manipulator. He had a subordinate, the chief of the Coast Artillery division, write a memo to him recommending Ben’s transfer. The reasons given were specious.
The first ground cited for transferring Ben was that “the nature of the charges upon which he was tried are well known at the post, and many of the officers and enlisted men of Fort Terry were material witnesses against him.”5 That was incorrect. Only two commissioned officers at Fort Terry were material witnesses against Ben, and Frick’s claims had been rejected. Two privates remained at Fort Terry whose claims had been sustained—Barrett and Fairey—and two noncommissioned officers—Campbell and Elvin Byers. The others either no longer worked at Fort Terry, such as Ward and King, or never had, such as Charles Byers and Moody, who were stationed on Fishers Island. Out of seven hundred men, five was not “many.”
The memo went on to state that because of the “above facts,” “the relationships now existing between Major Koehler and all of the other officers of the fort is [sic] strained. Major Koehler goes about the fort freely. The situation is very embarrassing.”
Embarrassing for whom? Nearly all the other officers at Fort Terry had testified for Ben, not against him. That was the source of the embarrassment, not the reverse.
The memo concluded, “It is known that Major Koehler has a following among the enlisted men and his presence, therefore, is injurious as far as discipline is concerned.”
Wood had written in December of the need to show enlisted men that the Army could be fair by subjecting an officer to a court-martial. Here he was approving the opposite argument, that because of his good relationship with enlisted men, Ben posed a threat to discipline.
Making Ben Koehler leave his home, friends, garden, and the only stability he knew was one of Wood’s last acts before departing Washington. The memo was dated April 18, and Wood approved it right away. On April 21, Ben received orders to leave Plum Island and head “without delay to Fort Wadsworth, N.Y.”6 With those words, the Nebraska boy born in Illinois and raised in Iowa set off for yet another island: Staten Island.
Some say that islands’ physical isolation feels protective, giving rise to a special feeling among an island’s inhabitants, a freedom from rules and convention, even from time itself. Some say that being surrounded by water creates a sense of community and endless possibility.
None of those appealing factors pertained to Ben Koehler as he headed on April 27 to New York City’s least populated borough. Staten Island was a city island with a bulkhead, and from Fort Wadsworth, situated on the coast, Ben did not much like the view. Across the harbor lay Governors Island, the place where Worcester had begun Ben’s nightmare. It was not voluntarily that Ben gave up the wildness of Plum Gut for the more domesticated Narrows, which divided New York Bay into two halves.
The two halves of the Koehler household also found themselves divided. Sophia, having given the Army two and a half years of free labor, no longer provided value as the post commander’s social hostess. She accompanied her brother one last time on the steamer to New London and the train to Grand Central Terminal. After that, she was on her own, free to purchase a one-way ticket to Iowa.
In April, war in Mexico became a reality. The United States sent troops, and Ben wanted to be among them. If Wilson upheld the verdict, Ben would try to reenlist as a private, his friends told the press. It was another parallel to the Dreyfus case, Ben’s “loyalty to the service” being proclaimed. Ben himself would say nothing of substance, not on the record.
“I expect word from Washington in a day or two regarding my court-martial,” he was quoted in the Washington Times at the end of April. “Until then, I must be silent.”7
In May, Sloan submitted a lengthy “Review of Evidence and Brief” to Crowder and Garrison as well as the “Opinions of Senators and Representatives” who had reviewed the transcript. Sloan’s memo summarized the testimony concerning each sustained charge in two columns, the government’s “Support” on the left, the “Opposition” on the right.
Of course, Sloan and his colleagues had not sat at Fort Terry and observed the witnesses. They had not seen the “clean-cut” appearance of Charles Byers, nor the earnestness of Philip Worcester as he spoke of wanting to make the Army “clean.” Juries are considered good evaluators of witness credibility because they can assess body language, directness of manner, and other indices of truth telling, yet studies have shown that under certain circumstances the brain may put undue weight on body language and tone of voice over content.
Based on content, Sloan and the other lawyers argued that a miscarriage of justice had occurred. “[A]bsolutely insufficient to sustain any of the specifications offered,” wrote Sloan of the prosecution’s evidence.8
Montana Senator Thomas J. Walsh, who would later be President Franklin Roosevelt’s choice for attorney general, pointed out Campbell’s use of the phrase “I believe” in several answers about Ben’s touching his arm.9 Walsh wrote, “It seems scarcely credible that if the acts charged ever did take place, and they had the significance attached to them in the charge, the witness would find his recollection of the occurrence so feeble that he would be required to qualify what he had to say about the matter with the expression ‘I believe.’” Campbell’s testimony “would not support the charge in any court exercising civil jurisdiction and ought not to be deemed sufficient for conviction in any tribunal.”10
Other reviewers expressed similar opinions. “Very much surprised,” wrote Senator George Norris, a former judge and prosecutor, calling Ben’s conviction on the Davis charges a “grave injustice” as “all the established circumstances” disproved Davis’s testimony. “Ridiculous” wrote the congressman who reviewed the Campbell charges. Representative Moses Kinkaid of Nebraska, also a former judge, said Jones, Lones, and others had “squarely contradicted” Elvin Byers’s testimony and that “hearsay and suspicion,” not “proper evidence,” produced the conviction. Daniel Anthony Jr. wrote of Fairey’s unsubstantiated testimony and motive to lie—Ben’s failure to promote him—and agreed that the jury’s vote to convict could have resulted only from a “general atmosphere of guilt and suspicion which the prosecutor’s office of the Government endeavored to build up around the accused.”11
In conclusion, Sloan asked that the convictions be set aside because the evidence of his character was “so strong and convincing” and the nature of the charges was “so at variance with the modesty, decency and manliness of the accused as testified to by his superior officers as well as his subordinates,” not to mention “the suspicious circumstances and the general relation of the parties making the accusations.”12
Garrison did not meet with Sloan and Gilbert Hitchcock to discuss the memo nor arrange for them to confer with Wilson, as Sloan said Garrison had promised.13 Nor, apparently, did Garrison raise any concerns with Wilson, for on June 20, Wilson told Garrison he did not see “any basis” for changing the verdict or sentence. The governor of Missouri had urged Wilson to let Ben remain in the Army at reduced standing or resign.14 Wilson did not do that. On June 23, he confirmed the sentence of dismissal.15 The adjutant general added his signature, Ben was summoned, and a telegram from Washington conveying the decision was read to him.16
Whether anyone actually reviewed Sloan’s submission cannot be known. It and the eleven-hundred–page transcript may well have been stamped and filed without a page being turned.
There is no doubt about what happened next to Ben Koehler. Twenty-one years to the month after he had entered West Point, he removed his uniform for the last time and took a ferry across the Narrows back to civilian life. At least he was spared a public shaming ceremony of the sort Dreyfus endured, with officers ripping off his insignia and breaking his sword.
The shaming took place in the press.
“KOEHLER OUT OF ARMY,” wrote The New York Times. The article repeated the falsehood that “evidence damaging to the accused” had come from all over the world—“from Hawaii and the Philippines, as well as the Pacific Coast” and embellished it with additional falsity: “The testimony piled up until it was stacked in sheets of typewritten foolscap a foot high. Only half an hour was required by the jury to reach a verdict.”17
The Times did note that Ben’s “career as an officer has been brilliant.” Perhaps someone had checked the Times archives and seen his photo in the West Point Class of 1897, back when he was described as one of the best and the brightest, an “embryo general.”
Now the Times concluded its article with a simpler description: “Major Koehler is a bachelor, 42 years of age.”