House of Evil: The Indiana Torture Slaying (St. Martin's True Crime Library) (13 page)

On April 12, the Indiana Supreme Court declined to overrule Rabb’s denial of a change of venue. Charges that undue publicity would prejudice potential jurors were without merit, deputy prosecutors had argued. Publicity was widespread throughout the state, they contended, and taking the case to another county would not change things.

The trial, then, was actually set to begin on Monday, April 18, with jury selection. Anticipating numerous juror dismissals by attorneys, Judge Rabb had ordered two extra panels of potential jurors to
be summoned to his court that week. Indianapolis’ two major newspapers and the two major news wire services made preparation for full-time staff coverage of the trial. A newspaper in Italy cabled the Associated Press requesting daily stories on the trial.

Judge Rabb ordered extra benches and chairs for members of the press. Television newsmen asked what photographic equipment would be permitted in the courtroom; Rabb ruled that no pictures, still or moving, could be taken in the courtroom while the judge or jury was inside. One of the city’s four TV stations, WFBM, arranged for students from the city’s John Herron School of Art to make sketches at the trial for showing to viewers. TV station WTTV later sent other artists to the trial. Newsman Bill Aylward of WISH television arranged to broadcast daily reports on the trial from the judges’ library.

The library and courtroom were in the five-story West Wing of the City-County Building, on the opposite end of the building from Police Headquarters. The wing contained sixteen modern courtrooms, all alike, for the Criminal Court, the Circuit Court, the Superior Court, the Probate Court, and the civil divisions of the Municipal Court. The two divisions of the Criminal Court were on the second story. Lawyers, government workers, relatives of victim and defendants, neighbors, crime buffs and regular courthouse hangers-on would press for admission daily to the courtroom’s fifty-seat gallery.

That the trial was the most talked-about, read-about news story of the time could be proven easily.
Twenty journalism students at an East Side high school were quizzed by their teacher on names in the news. Only four members of the class were able to identify the name of Roger D. Branigin as that of the governor of Indiana. But only two were
unable
to identify
Sylvia Likens
as the name of the victim of a sadistic torture slaying.

On April 16, 1966, two days before the trial was to begin, Deputy Prosecutor Leroy New announced that the state would seek the death penalty for all defendants.

IT WAS
to be daughter vs. mother and sister vs. sister in what Deputy Prosecutor Leroy New later called “the most diabolical case ever to come before a court or jury.”

The famed New York trial lawyer Louis Nizer wrote that “the excitement, surprise and meaningfulness of a real court contest are incomparable and elude imagination.” The Likens murder trial had all those elements and then some.

Nizer contended that fictional trial scenes, such as in the movies or on television, are usually incorrect or inadequate.

“In fictional court scenes,” he wrote, “one sharp contradiction often breaks the witness, who then hysterically screams a confession. In real life the witness’ fortitude in the face of exposure is as remarkable as a human body’s resistance to incredible torment.”

Cross-examination will leave the witness “no retreat” and compel him “to admit his error,” Nizer
wrote, “yet he continues to fight back and clutch for the remote chance that the tide will turn and he will not go under.” But one witness actually did break down in the Likens murder trial, a real-life drama that possessed fictional qualities as well.

THE ATMOSPHERE
was informal as the trial began at 9:30 a.m. Monday, April 18, like a convention that has yet to get into gear. Before jury selection could begin, Judge Saul Rabb had some unfinished business to attend to, including rulings to make on several motions filed just before the court closed the previous Friday.

Forrest Bowman had obtained his order for a psychiatric examination of Johnny Baniszewski, as a matter of defense, but he reported that he had been unable to find a psychiatrist willing to take the case, after diligent efforts. He petitioned the court for a postponement of the trial to give him more time to find one.

Bowman also had just assumed the case of Coy Hubbard, after Hubbard’s first attorney, Joseph F. Quill, had withdrawn the previous week. So Bowman hastily filed for Hubbard motions similar to those he had filed earlier for Johnny, such as a motion for change of venue and a motion for separate trial. Rabb was faced also with new motions by Paula’s attorney for separate trial and change of venue.

Gertrude’s attorney, William Erbecker, asked for and received court funds with which to employ a
defense psychiatrist to determine whether the woman “might be suffering from sadism or have propensities for sadistic acts.”

Rabb’s denial of Bowman’s motion for a four-week continuance sent the young lawyer scurrying across town to the Statehouse again to ask the Indiana Supreme Court to force Rabb to grant the continuance. The Supreme Court unanimously turned down Bowman’s bid for four weeks, but the hearing did delay the trial four hours.

The defendants had come prepared for a long trial. Stephanie, who was carrying two A’s and two B’s in her course work at the Juvenile Center, read a biology textbook as the attorneys questioned potential jurors and argued with the judge.

Gertrude, wearing a white blouse, sat stone still. Paula, in an old brown skirt and faded green blouse, slouched in her chair. She had observed her 18th birthday while awaiting trial.

Coy Hubbard, neatly attired in a gray suit, white shirt and tie, sat ramrod straight and attentive. Richard Hobbs, wearing a brown sport coat, hung his head in his hands. Johnny, wrapped in a blue wind-breaker, fidgeted in his chair, his chin resting in his hand, his alert eyes focusing alternately on every corner of the courtroom. He had observed his 13th birthday in jail.

The defense lawyers were lined up at two long tables facing the jury box. Each defendant sat behind his own lawyer. Behind the defendants sat representatives of the press, lined against the wall.

To the right of the defense table, also facing the jury, was the prosecution table. Seated with Leroy New was the amiable Marjorie Wessner, a deputy prosecutor who had been selected to assist him in the case. In cases involving women and children defendants, the prosecutor’s office liked to have a woman prosecutor to avoid giving the impression that New was bullying the defendants.

Seated behind New and Miss Wessner was Norman K. Collins, a prosecutor’s investigator assigned to Criminal Court, Division 2. Behind Collins, at the front of the gallery, sat Sylvia Likens’ surviving sisters, Jenny Likens, now 16, and Dianna Shoemaker, now 19.

Near them sat 10-year-old Shirley Baniszewski, a state’s witness. Shirley was the subject of a slight altercation just before lunch between New and Collins, on the one side, and Stephanie’s attorney, John Hammond, on the other. Hammond insisted that he was still Shirley’s attorney, and he objected to her presence in the courtroom; he said he had not been informed that she had testified before the grand jury. The deputy prosecutors objected to her being allowed to talk to her mother.

Despite the confusion, New and Miss Wessner managed to tentatively accept twelve jurors before Bowman made his crosstown trip to the Supreme Court. New had asked potential jurors a brief series of questions regarding their ages, occupations, families, opinions, and feelings on the subject of capital punishment. At New’s request, Judge Rabb excused
one potential juror who said he had conscientious objections to capital punishment.

Things went much slower when the jury examination, called voir dire, was passed to Mrs. Baniszewski’s lawyer, William Erbecker. He spent 45 minutes questioning the first juror and 20 minutes on the second before the court recessed for the day. Erbecker had already nettled Judge Rabb by returning to the court 45 minutes after the judge had called a 15-minute recess.

To each juror, Erbecker read a five-paragraph legal pleading he had filed in answer to the indictment. The pleading set out in detail Mrs. Baniszewski’s plea of insanity. Erbecker reminded the jurors that it was the state’s duty to prove Mrs. Baniszewski not only guilty beyond a reasonable doubt, but also to prove her sane beyond a reasonable doubt.

He asked the first juror whether he would expect a mother to have a greater degree of responsibility under the law than her children. “I would have to say yes,” the potential juror said.

“Would you require less evidence against her, then?” asked the lawyer.

“No,” he said. And so it went. “Are you going to hold her more culpable, more to blame than the minor children?” Erbecker asked the second juror.

Judge Rabb interceded: “Or would you require them to prove her guilty beyond reasonable doubt?”

“Sure,” the juror replied.

“Sure,” Rabb echoed. “Next question, please.”

Three potential jurors questioned the first day expressed reservations about capital punishment but said they could go for it in certain circumstances.

The state’s capital punishment law was at that time in abeyance. The 1965 legislature had repealed it, but the governor had vetoed the repeal, expressing a desire that the next legislature, in 1967, give it fuller consideration, and expressing a desire also that no one should die in the electric chair in the interim.

One potential juror had said he already considered Mrs. Baniszewski to be guilty, but he said he could listen to the evidence impartially and give her a fair trial. He was a teacher at Tech High School, where Sylvia and the elder Baniszewski girls had attended, but his only knowledge of the case was from reading newspapers, he said. He was later excused by attorney Bowman.

The courtroom was filled with spectators that first day, and it was to remain that way through seven tedious days of voir dire.

Erbecker held the floor throughout the second day, with a few brief questions interjected by New from time to time. Erbecker asked one potential juror, the brother of a state trooper, “Did you hear of this case before?”

“Of course,” the man replied. He said he had no preconceived notions, however. But he was dismissed by the court later when he said he opposed capital punishment in principle.

Another man, excused for the same reason, had
remarked, “We on earth don’t have a right to take life like that. The first death does not justify the second death.”

Erbecker relinquished the floor to George Rice, attorney for Paula, late the third day, Wednesday, April 20.

The day had been marked by several incidents. Jenny Likens had been ushered from the gallery when she began crying during reading of the indictment to some newly arrived potential jurors. The gallery burst into applause later when a woman juror being questioned by Erbecker, in regard to Gertrude’s sanity, remarked, “Some people just use insanity to try to get out of things.”

Erbecker regarded the outburst as prejudicial to his client and asked Judge Rabb to dismiss all jurors who heard it, but Rabb refused.

Gertrude and her son Johnny kissed one another on the cheek before being led away by sheriff’s deputies at the noon recess.

Erbecker had spent two days finding twelve acceptable jurors; Rice spent only a half-hour before adjournment Wednesday finding five acceptable jurors.

“Have you ever made any study of psychology, or criminology?” Rice asked the panel members. He wanted at least two people on the jury with knowledge of slum life.

Another of Rice’s questions was, “Do you have a preference as to the Old Testament or the New Testament?” Later, the lawyer-professor explained, “I interpret a preference for the Old Testament to indicate
a sense of vengeance and a preference for the New Testament as showing mercy.”

John Hammond took over when Rice finished on Thursday. He asked jurors whether they agreed that premeditated malice, alleged in the indictment, meant that Stephanie “planned to kill Sylvia, and at a specified time.”

But Deputy Prosecutor New, in later questioning, read from a law book that “malice may be implied from any deliberate act or cruel act” and that premeditation indicated a plan “to do something—not necessarily to kill—but to do something that results in death.”

Many of the potential jurors said they would rather not serve on the jury, but they said they would serve willingly because it was their duty. One member of the regular jury panel, who had already served on four juries during that court term, said, “I would rather not be a juror, period—in the Likens case or any other case.”

The lawyers “passed” a tentative jury of ten men and two women late Thursday. But there were still a number of “peremptory challenges” to be used, the privilege of excusing potential jurors without giving reasons. Twenty peremptory challenges were allotted to the state, and twenty to the defense.

Richard Hobbs’ attorney, James G. Nedeff, had asked potential jurors whether they could be fair and unprejudiced even “if the evidence tends to prove lurid and shocking and horrid, and if pictures are introduced.”

The attorneys did begin using their peremptory challenges more freely on Friday, April 22, and tempers flared for the first time in the trial. By the noon hour, New had become exasperated at Erbecker’s tedious, repetitious questioning.

“We have sat by through a large extent of questioning,” he told the judge, “which is probably irrelevant and not proper voir dire examination. When our objection to his question is sustained, Mr. Erbecker immediately goes back to the same line of questioning. It is an utter waste of time. I feel a comment is needed now, simply in the interest of getting this case over within the month. We’ll be here forever.”

Judge Rabb was wary of admonishing a defense attorney, for fear of giving him grounds for appeal, but he agreed with the deputy prosecutor that many of Erbecker’s questions to jurors were “repetitious questions which may be detrimental to your client’s interests. I am known throughout the state of Indiana, I think, as the most liberal judge on voir dire. But repetition is just pressing the point.”