Halfway through the second week of the hearing, the proceedings had settled into a predictable rhythm. At eleven o’clock sharp each day — Reno walked in a few minutes late one day and was sharply rebuked by Colonel King — the court was declared in session. Spectators filled the room as each session proceeded, often standing against the walls. “Occasionally ladies come in — never more nor less than two,” reported the Chicago Daily News. “They stay only a short time.”32 A meek orderly fetched witnesses and did the bidding of the court officers. The stenographer read aloud the preceding day’s testimony, making changes when necessary as corrected by the witness. Less than a week into the investigation, Hollister began reading from the Chicago Times account instead of his notes and making corrections to it. He had planned to write up his official account in longhand, but he had fallen behind as the hearing progressed and received permission to insert the newspaper accounts — as much as half the testimony — into the official record.33
While Hollister took up to an hour reading the testimony, some of the officers perused the morning newspapers, which also carried the testimony and other stories of interest. Congressman Hewitt’s army reorganization bill had been sent back to committee, and another one, less severe, was forthcoming. The Cheyenne outbreak near Fort Robinson was still unresolved. And a new invention called the telephone was now for sale: front-page ads in the Inter-Ocean touted its advantages for business use, guaranteeing its range up to one mile.34 During the occasional short recess between witnesses, the officers of the court stretched their legs, often discussing matters other than the case — for instance, the fact that the Austrian opera star Minnie Hauk occupied the room on the opposite side of the hall.35 The proceedings rarely lasted more than three hours, after which a plaintive look from Hollister indicating that he had more than enough notes to transcribe prompted King to call an adjournment until the next day.
Most of the witnesses took the opportunity to see the city. Benteen, however, avoided leaving the hotel. He had brought no civilian clothes with him and disliked being stared at in the street. He left only to shop for his wife and her friends and to visit a photographer to have his picture taken with Lyman Gilbert.36
As the hearing wore on, Lee’s questioning showed marked improvement, particularly his cross-examination and redirect. Soon he was holding his own in clashes with Gilbert, who, while never having participated in a court of inquiry either, was the Deputy Attorney General of Pennsylvania and a savvy and tenacious trial lawyer. A week into the investigation, the Inter-Ocean noted that Lee “fences with all the urbanity and cleverness of his opponent.”37 But in terms of fixing guilt or otherwise, not much had been achieved. At least one newspaper noted the lack of substantial criticism of the Major, commenting on the “as yet rather fruitless search for cowardly conduct at the Little Big Horn fight.”38
As each witness took the stand, told his story, rendered answers, and gave way to the next, it became increasingly evident, to some observers at least, that the truth — especially “the whole truth” — was not always supplied. One reporter wrote: “There was more the appearance among the soldiers of brother officers met in pleasant counsel than of the trial of one of the number for conduct unbecoming one adorned by sword and straps.”39
This bonhomie might have been the result of Reno’s largesse. He entertained often in his suite, and rumors spread of copious amounts of champagne and whiskey on tap, along with cigars and even, according to Whittaker, “ladies of pleasure.”40 Reno himself was perhaps not the most convivial of companions, but Benteen was on hand to smooth things over. He might be shy of strangers’ stares in the street, but he showed no such self-effacement when it came to inveigling junior officers to join in the party atmosphere.
In later years, stories would spread that the Seventh’s officers had agreed beforehand as to how they would testify, in some accounts even practicing their testimony privately. Godfrey hinted as much, telling how Benteen had urged him to join the merry drinkers and had tried to draw him out on his testimony concerning Reno’s conduct. Both Gilbert and Lee conducted pre-interviews with some of the witnesses to help them prepare their testimony. Indeed, as the trial progressed, Lee noticed an alarming difference in what he was told outside the courtroom and what was testified to on the stand, and many years would pass before he would fully understand the reasons for it.41 But suspicions remain that something more than preparation, and very like collusion, went on among the partygoers in Reno’s suite. Most to their dying day denied such allegations indignantly. Only one officer admitted it: Charles DeRudio.42
CIVILIANS, OF COURSE, were outside the Palmer House charmed circle, though that did not make them immune to Palmer House pressure. Much later, Gerard claimed that
any officer who made himself obnoxious to the defense would incur the wrath of certain officers in pretty high authority in certain department headquarters farther west than Washington and not as far west as St. Paul [Terry’s headquarters; in other words, Sheridan’s headquarters in Chicago]. . . . The trial had not proceeded far before it came to be known among the witnesses, including commissioned officers, some of whom were outspoken to me in confidence, that the way of the innocent and truthful could be made hard.43
Nevertheless, as Gerard had already demonstrated, civilian witnesses could be unpredictable — and damaging. The next witness called, Dr. Henry Porter, was just one such.
Like Gerard, Porter had been queried by Gilbert as to what information he could reveal on certain points. There were questions that Porter hoped he would not be asked.44 While he intimated that Reno had “lost his grip,” as the Tribune put it — Porter described the Major as “a little embarrassed and a little flurried. . . . He didn’t hardly know whether to stay there or leave” the timber45 — Gilbert on cross-examination made it clear that between tending to the wounded, his admitted fright, and his lack of military knowledge, the good doctor’s conclusions were questionable.
Any minor damage done to Reno was mitigated by the next witness, Captain Myles Moylan, who appeared in civilian clothes, since he had just finished a leave of absence in the East. Though Moylan had expressed his low opinion of Reno before and would do so again,46 his testimony on this day was nothing but complimentary. His story of the battle supported Reno in every instance, and the straightforward and confident manner in which he answered made a strong impression “not only upon the audience, but upon the court,” observed the Chicago Times reporter.47
One exchange, however, was telling. Gilbert asked Moylan, “Wouldn’t you sooner have been dejected on top of the hill than dead in the timber?”
“Well, I would rather be on the top of the hill than dead anywhere,” said Moylan, and the room erupted in laughter.
A few minutes later, Lee took the witness. “In regard to your statement that you would rather be dejected on the hill than be dead in the timber,” he said, “would it not have been better dead in the timber than dishonored on the hill as a soldier?”
After an objection by Gilbert and some hemming and hawing from Moylan, the Captain finally answered. “Very few men but would prefer to be dead in the timber than to be alive on the hill and degraded,” he said. There was no laughter this time.
“Yes,” said Lee, “that is just what I thought you would answer.”48
Lee’s pressing of Moylan, the most senior officer to appear so far and an intimidating presence, marked Lee’s growing confidence. The examination also marked a subtle shift in his role. He was astute enough to have spotted the emerging strategy of the Reno camp: prove that Custer’s fight was over quickly and therefore that Reno’s actions could have done nothing to affect the outcome. This, however, meant trashing the performance of Custer’s battalion. A panic rout was required, and a panic rout was duly supplied by the battlefield evidence cited by army witnesses.
To Lee, this was clearly distasteful. Moylan’s evidence had carefully and conveniently exempted his own brother-in-law, Calhoun, from the general slur but had o
therwise taken the party line: Custer had established no skirmish lines and therefore had presented no organized resistance. Lee now challenged Moylan and forced him to agree that the command “might have been fighting with all the courage and bravery possible, and still the position of the bodies might not indicate it.”49 From then on, Lee lost few opportunities to make similar interventions. If any witness pointed to the small number of cartridge cases found on Custer’s field, Lee would immediately counter with, “Do you know or not know it was the habit of the Indians to pick up those shells?” He also forced more than one officer to admit that Custer could have escaped from the field but had elected to stay and fight.50 If Custer’s dead were to be put on trial here, Lee would see to it that they were not without a defense counsel.
The next Monday, Moylan answered one inconsequential question from Gilbert and gave way to George Herendeen. The scout painted a harrowing picture of a panicked command fleeing from the timber — “Everyone was running for his life,” he said51 — and claimed that Reno could have held the timber indefinitely with water and provisions. Gilbert did his best but could not weaken Herendeen’s assertions.
Luther Hare took the stand for the last half hour. Though he, too, avoided any direct criticism of Reno, he reiterated that there was no attempt to provide cover during the river crossing on the retreat, a fact Moylan had also admitted under Lee’s cross-examination.
The next day brought a surprise. As soon as Hollister finished reading Herendeen’s testimony of the previous day, Lee arose to call the attention of the court to a document he held in his hand.
Frederick Whittaker had sat in the gallery on the other side of the room from Reno and watched quietly for four days. Though summoned by the court to appear, his participation had been limited to “side expressions of contempt or impatience”52 at any mention of Reno’s conduct. He had heard and seen enough. It was time to take matters into his own hands.
Lee stated that Whittaker had handed him a paper containing seven questions that he wanted the recorder to put to Herendeen. Whittaker had also requested that he be permitted to interrogate Herendeen or any other witness. In other words, he wanted to act as prosecutor, or Lee’s assistant.
Lee was courteous in his response, but his irritation was clear. “As far as I am concerned as recorder, I have not considered that I was here as the prosecutor of Major Reno,” he said, a fact he had made clear previously.53 “I have desired to elicit all the facts in the case, whether they are for or against Major Reno; and while I have not a very exalted opinion of my own abilities in the matter, still I feel that I am, if I may be allowed to say so, competent to go on with the matter as I have done heretofore, because if I had not felt so, I shall have asked the Court before this time for assistance in this matter.”54 Gilbert examined the questions and voiced no objections, but the court ruled against Whittaker’s request. It did, however, allow Lee to use the queries.
Reno edged forward in his chair and watched Herendeen intently as Lee posed the questions to him. Each involved Reno’s conduct during the battle, and most centered on his actions just prior to leading the retreat from the timber. Herendeen’s answers revealed that Bloody Knife’s blood and brains had spattered onto the Major and that Herendeen believed that it had “demoralized him a good deal.”55 But he refused to be led into any statement of cowardice on the Major’s part.
Over the next three days, the court heard from four more Seventh Cavalry soldiers. On Wednesday DeRudio took the stand, followed by Sergeant Edward Davern, Reno’s orderly during the battle; Sergeant Ferdinand Culbertson of A Company; and trumpeter John Martin, the bearer of Custer’s last message. Each commended Reno’s personal conduct. DeRudio was the first Seventh Cavalry officer subpoenaed not by Reno but by the recorder. His opinion of Reno had improved noticeably in two weeks. The day he had left Bismarck for Chicago, he had granted an interview with a reporter and criticized the Major severely, alluding to Reno’s “fatal mistake in retreating from the wood . . . nothing but fear could have prompted his retreat.” DeRudio now claimed that he had been misquoted and went on to praise the Major effusively.56
An extra-large crowd was on hand for the proceedings of Saturday, February 1, to see the inquiry’s star witness. Frederick Benteen had been called the previous afternoon, but the orderly sent to fetch him had failed to find him at hand. Word of his scheduled appearance had spread. Several women graced the courtroom — the Captain was widely acknowledged as the great hero of the battle, and his feelings regarding Custer were well-known.
Benteen did not disappoint. Over the next day and a half on the stand, he put on a show. He blithely ignored some of Lee’s questions and answered others with non sequiturs. A seasoned trial lawyer would have had Benteen squirming in his seat as he attempted to defend testimony chock-full of holes, untruths, and contradictions. But Lee, despite his rapid improvement, was not experienced and was not expected to prosecute. He made few if any attempts to probe Benteen’s testimony. When he did, asking the Captain three times where Reno had been when the column had begun to retreat from Weir’s forward position, Benteen simply did not answer, though he implied that Reno had been with him. His testimony was laced with indirect criticisms of Custer and cleverly contrived to avoid overt disparagement of Reno, while making it clear that he, Benteen, was the better man. He contradicted his official report and (unknown to anyone in the room) private letters he had written to his wife just days after the battle. He offered outright lies, abundant sarcasm, and frequent obfuscation, all with a degree of wit. The audience loved him.
Benteen stumbled only once. On redirect the next day, Lee asked him, “When two columns, say that of General Custer and yourself at that time, are in quest of Indians, would it not be the duty of the one which found the Indians to notify the other?”
“Certainly,” replied Benteen.
“Did you not receive such notification from General Custer at the hands of Trumpeter Martin?”
“I received an order to ‘Come on, be quick, big village, bring packs.’ He then had found them” — Benteen stopped in midsentence; Lee had led him to the point of admitting that he had disobeyed a direct order from his commanding officer — “but at the same time, I wish to say before that order reached me that I believe that General Custer and his whole command were dead. I mean before that order reached me.”
That was an odd statement to interject at that moment, and it directly contradicted some of his testimony of the previous day — that he had believed Custer was still alive when he had planted the guidon on the high peak. But if Custer had died soon after sending the order, Benteen was technically not obliged, under the Articles of War, to obey it.57 Neither Lee nor any officer of the court interrogated Benteen after this glaring contradiction.
After several more questions that Benteen answered in increasingly contemptuous fashion, Lee had one more matter to bring up.
He asked, “Were you on amicable terms with General Custer on the twenty-fifth of June 1876?”
The white-haired Captain again attempted a clever answer that would not be a direct lie. “As amicable then as I ever was,” he said, in a statement classically Benteen — the truth but not the whole truth.
Lee understood Benteen’s meaning — his feelings toward Custer were well-known in the army. “Were your relations with General Custer in accord at that time?”
Benteen replied in the same way: “As much so as they ever were.”
Lee was not to be put off and finally asked the question in a way that would make it difficult for the Captain to evade the truth and yet remain faithful to himself: “Did you entertain a good or bad opinion of General Custer as a commander?”58
Gilbert had remained silent after the first two questions. But he must have realized Lee’s intent and the possibility that Benteen — who had, after all, said that Reno’s conduct was only “all right” and had also expressed his belief that the timber was a stronger position than the hill — might tell the truth and cast
the shadow of personal vindictiveness on his supportive testimony. Everyone knew that Reno hated Custer; if Benteen admitted to the same feelings, it might seem conspiratorial. The lawyer broke in to object: the relations of General Custer with other officers, he said, were irrelevant to this inquiry.
Lee pointed out that Gilbert had gone into some matters of this type — Gerard’s relationship with Major Reno, for one — and this was no different.
They argued back and forth for another couple of minutes. After a quick consultation, the court sustained the objection. After a few more questions, Benteen rose and walked out of the room.
And so it continued, witness after witness — Edgerly, Godfrey, Mathey, McDougall — all only mildly damaging. The two citizen packers, Frett and Churchill, told of their altercation with a drunken Reno. Gilbert tried to damage their credibility, but Frett in particular gave as good as he got, and Gilbert quickly called several officers to the stand who refuted their accusations. By the end of it all, the only thing that seemed conclusively established was that Reno drank too much.
Though by military law Reno was not required to testify, once the witness list was completed, he formally requested permission to take the stand. Late Friday morning, February 7, his examination began. He spent the rest of that day and all of the next in the witness chair. Though the crowd on Friday had been a good one, the spectators on Saturday spilled out into the corridor when news that Reno would take the stand hit the papers.
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