House of Evil: The Indiana Torture Slaying (St. Martin's True Crime Library) (14 page)

Many of Erbecker’s questions had dealt with Mrs. Baniszewski’s responsibility for what her children might have done. “Would you consider her mere presence as evidence of guilt?” was one question thrown out by Judge Rabb, after New objected. New contended that the purpose of voir dire was to find jurors who would follow the law and give a fair trial, without prejudice. The defense lawyer was not allowed to plead his case during voir dire, New argued.

“Am I being restricted, Your Honor?” Erbecker asked, attempting to lead the judge into an appealable error.

“You are not being restricted in any way,” Rabb replied kindly.

At this point, Forrest Bowman renewed his motion for separate trial for his two clients. He said Erbecker’s “badgering” of potential jurors would prejudice them against all defendants.

Friction became intense as Judge Rabb extended the normal 5 p.m. quitting time to past 7 p.m. in an effort to get a jury. Erbecker continued his line of questioning; New continued his objections, and Rabb continued to sustain New.

Erbecker asked to have the jury excused from the courtroom temporarily. The defense had ten peremptory challenges left, and Erbecker said he was using all ten of them to dismiss all but two of the tentatively accepted jurors, on grounds he was being restricted in voir dire.

Other defense lawyers leapt to their feet, objecting that Erbecker had no right to use all the challenges himself. Judge Rabb agreed with them and disallowed the blanket challenge, noting that Erbecker already had made most of the peremptory challenges used.

The jury was ushered back into the courtroom. “Do you have a motion to make?” the irritated judge asked Erbecker.

“No, Your Honor,” answered the lawyer, fearing he would alienate the jurors if they knew he wanted
to excuse ten of them. But Rabb restated the motion anyway, for the jurors to hear. Erbecker then withdrew the motion and asked for a mistrial, which was denied. The trial was recessed until the following Monday.

The parents of victim and accused showed up in the courtroom for the first time in the trial that Friday. Lester Likens, now 40, and Betty Likens, now 38, sat in front of the gallery, tanned from their resumed tour with the carnival in the Florida sun. They and their son Danny, now 19, had driven a broken-down truck to its death near Nashville, Tennessee, in an effort to get back to Indianapolis for the trial, and they pooled their final resources for bus fare the rest of the way to the city.

The other courtroom visitor was Mrs. Baniszewski’s ex-husband, rock-jawed John S. Baniszewski Sr., 39 years old, father of three of the defendants. He lavished his attention on Stephanie, and to a lesser degree on Johnny. Stephanie cried when her father embraced her as he arrived in the courtroom at the end of the day.

Stephanie, carrying a paperback copy of the Gospel According to St. John, had a long noon-hour conversation that day with her attorney and Deputy Prosecutors New and Wessner. It was a prelude to the trial’s most dramatic event so far, to occur the following Monday.

That Monday morning, April 25, as the first order of business, New offered to join in Stephanie’s motion for a separate trial, saying the evidence justified it.

At the same time, the deputy prosecutor announced: “As of now, we have the expectation that she will testify for the State of Indiana. She has been called as a state’s witness. But she doesn’t have to testify, on a felony, and if she does, it will be completely voluntary.”

Other lawyers immediately charged that there was a sellout. As events proved, the grand jury eventually reconsidered Stephanie’s case and set her free with “no bill.”

Other attorneys renewed their motions for separate trial, but to no avail. Judge Rabb granted Stephanie’s, but only because the state had joined in it, he said.

New said he and Miss Wessner had decided Sunday to separate Stephanie from the other defendants after “we obtained substantial evidence over the weekend.” He declined to discuss the evidence, but it pertained to Stephanie’s attempts to rescue Sylvia and to her minor participation in torturing the girl.

Hammond, Stephanie’s attorney, was jubilant. He knew he had won his part of the case before testimony even started. He had maintained all along that Stephanie was a “nice girl,” who showed much promise. He was even prepared to introduce medical testimony that she was a virgin.

Jury selection continued in slow fashion that Monday, but attorneys agreed rapidly the next day on a jury of eight men and four women, all white, to hear the case. All but one were parents, most of them with children about Sylvia’s age.

The jurors included a 39-year-old housewife; a 35-year-old General Motors Corporation machinist; a 23-year-old engineer who had known Sylvia Likens as a customer at his father’s grocery store; a 58-year-old woman television survey pollster; a 36-year-old transportation agent for Trans World Airlines; a 47-year-old assistant sales manager for a manufacturing company; the 42-year-old wife of another General Motors employe; a 36-year-old General Motors mechanical engineer; a 39-year-old communications worker for the National Guard; the 45-year-old wife of an employe of Eli Lilly & Co., a pharmaceuticals manufacturer; a 59-year-old general foreman at the International Harvester company, and a 50-year-old laboratory technician at Eli Lilly.

Two women were selected as alternate jurors—one the wife of a General Motors employee, the other a divorcee and General Motors secretary.

In selecting the jury, the state had obtained the dismissal of fifteen potential jurors who expressed conscientious objections to capital punishment and eight potential alternates on the same grounds. The state used five peremptory challenges.

Erbecker, Mrs. Baniszewski’s lawyer, obtained five dismissals by the court of potential jurors who showed prejudice, and he used nine peremptory challenges. Paula’s lawyer, George Rice, obtained one court dismissal and used two peremptory challenges. John Hammond had used one peremptory challenge before Stephanie was removed from the trial. Forrest
Bowman had used one peremptory for Johnny Baniszewski and one for Coy Hubbard. Richard Hobbs’ attorney, James Nedeff, excused no jurors.

During the jury selection, buzzing around the scene with members of the press was a tall, lean, pipe-smoking youth with an Ivy League look. He was an angry and earnest young man from Wayne, New Jersey, and Antioch College in Yellow Springs, Ohio.

He identified himself to Judge Rabb and the attorneys as Jay Tuck, 20 years old, representative of the American Humanist Association and its collegiate organization, the Humanist Student Union of North America.

“There’s something wrong here,” Tuck told anyone who would listen. “Something very wrong—that something like this could happen.”

He was talking about the trial of five teenagers on charges of first-degree murder, as well as about the torture slaying itself.

“I’m here to find out what’s going on,” Tuck told his listeners. He asked how the torture was allowed to happen. “I’d like to know where the police were, where the Welfare Department was, where others were who could help.”

Tuck said he was interested also in the issue of capital punishment, “which we believe is wrong,” and in the defendants’ insanity pleas. If found insane, he asked, would the defendants be any better off in a mental Hospital than in prison?

The angry young humanist was concerned also
about the widespread publicity the case had received, and to which he was about to add, as associate editor of the
Humanist
magazine. “Everyone seems to have preconceived notions of the case,” he complained.

True to form, defense attorney William C. Erbecker interviewed Jay Tuck as a possible defense witness for Gertrude Baniszewski. As things worked out, Erbecker called about everyone
but
Jay Tuck to the witness stand.

“THE EVIDENCE
will show that Sylvia Marie Likens was born in Lebanon, Indiana, January 3, 1949, and was 16 on January 3, 1965….”

Deputy Prosecutor Leroy K. New stood tall and erect, reading expressively but unemotionally from typewritten sheets of yellow, lined, legal-sized notebook paper. Spectators standing in the rear of the courtroom craned their necks to get a glimpse of one of the state’s best trial lawyers as he read the prosecution’s opening statement to the jury.

“The evidence will show,” New continued, “that Jenny and Sylvia became acquainted with a neighbor girl on East New York Street, Naomi McGuire. You will see her sister, Darlene McGuire, who frequented the Baniszewski house until she was ordered by her parents not to return inside the house ever again….

“The evidence will show that immediately after her parents left the house for the last time, Gertrude
turned to Sylvia and said, ‘What are you going to do now, Sylvia, now they’re gone?’…

“The evidence will show that one time Gertrude picked up a knife, held it menacingly in her hand, approached Sylvia and told her to ‘Come on…fight me back,’ and Sylvia said she didn’t know how to fight. The evidence will show that Sylvia received a cut completely through the jeans on one leg and on her wrist in that encounter….

“The evidence will show that Sylvia suffered from malnutrition at the time of her death and Gertrude told a neighbor girl that she had seen Sylvia eating out of the garbage can….

“The evidence will show that Gertrude and John and Paula planned to get rid of Sylvia by dumping her in a place called Jimmy’s Woods the day before she died….

“The evidence will show that she defecated and eliminated her bowels in her shorts in the basement and that she continued to moan….

“The evidence will show that at no time was Sylvia taken to a doctor or given any medication except for alcohol or Merthiolate on the open burns….”

New read for 45 minutes, his delivery commanding the attention of everyone in the courtroom throughout. His straightforward account was probably the most accurate, most complete, most horror-striking résumé of the crime up to that time.

Then came the defense’s turn to summarize what it would prove. William C. Erbecker, 10 minutes late getting back from a recess that followed New’s
statement, took the floor after being gently reminded by Judge Rabb to be on time in the future.

“Gertrude Baniszewski has no opening statement as to what she will prove,” Erbecker began.

“It is blatantly obvious,” he shouted, quickening the pace, “that the State of Indiana has made a deal with one of the co-defendants.”

New objected to this reference to Stephanie Baniszewski. “Sustained, as to the type of language,” Judge Rabb said.

“The state’s own evidence,” Erbecker resumed, “will create a reasonable doubt in your mind as to how this death occurred.” Erbecker finished in three minutes, having been cautioned again by Rabb to confine his statement to what he intended to prove.

Attorneys George P. Rice Jr. and Forrest B. Bowman Jr. waived their opening statements. Attorney James G. Nedeff took the floor for the defendant Richard D. Hobbs.

Nedeff promised that his client would take the stand and admit tattooing and branding Sylvia. Then the lawyer explained: “Richard Hobbs is guilty of some offense, but I can assure you he is not guilty of first-degree murder. At most, he is guilty of immaturity and gross lack of judgment.”

After another five-minute recess, Erbecker moved for separation of defendants—meaning he wanted a separate table so that his client would not be associated with the “guilty” children—and a separation of witnesses, meaning that all witnesses but the one testifying must remain outside the courtroom.

Judge Rabb granted both motions. The idea of separation of witnesses is to keep their stories independent, to keep them from collaborating; it also meant that Sylvia Likens’ grieving parents, who were to be witnesses, would be removed from the jury’s sight. The state was allowed to keep one witness in the courtroom, however, and New and Miss Wessner chose Jenny Likens.

Testimony was to begin after lunch. Before it got under way, evidence was heard on Erbecker’s motion to suppress testimony on remarks Gertrude had made to police.

“Did you effectively warn her of her constitutional right to remain silent?” he asked Patrolman Melvin Dixon.

“No, sir,” he said. But he said he had no reason to suspect Gertrude at that time, as she attempted to implicate an anonymous gang of boys. Erbecker then put the same questions to another patrolman, Paul E. Harmon, and to Detective Sgt. Kaiser. Kaiser said he did not warn her of her rights when he first spoke with her because he did not suspect her. Later, he said, “I told her she didn’t have to say anything, or do anything or sign anything until she had an attorney. She said she hadn’t done anything wrong and she didn’t need an attorney.”

Erbecker asked about the mode of questioning, whether psychological pressure was used, and again asked Kaiser whether he had advised her of all her constitutional rights.

“I don’t know what her constitutional rights are,”
the exasperated detective said. “The only thing I told her was she didn’t have to say anything until she had an attorney.”

Rice asked for a recess; Paula had to go to the restroom. The judge denied the request. “It’s the hardest job I’ve got, to get everybody back together,” he said, frustrated by attorneys turning 5-minute recesses into half-hour recesses.

Erbecker, who seized the opportunity to handle misdemeanor cases in Municipal Court during recesses, and Nedeff, who went home during the lunch hour for cat naps, were the worst offenders. When Rabb did grant a recess at the conclusion of Erbecker’s questioning of Kaiser, he said to Rice, “You’ve always been here on time; I’ll appoint you sergeant-at-arms to see everyone else is here.”

Rabb overruled Erbecker’s motion to suppress. He said that the United States Supreme Court case of
Escobedo
vs.
Illinois
, cited by Erbecker, did not apply in a case in which the defendant spoke to police voluntarily in an attempt to mislead them.

Finally, at 3 p.m., the state was able to call its first trial witness, Patrolman Dixon (all the testimony to this point had been on the motion to suppress). Dixon barely breathed his name before the four defense attorneys leapt to their feet with a new wave of constitutional objections. Bowman argued that Dixon should have had a search warrant to enter the Baniszewski house. Rabb overruled the objection; Dixon had been called there at the instance of Mrs. Baniszewski, and the door was wide open when he arrived.