House of Evil: The Indiana Torture Slaying (St. Martin's True Crime Library) (15 page)

New asked Dixon what Mrs. Baniszewski said. Attorneys for the four children objected; since the children were not present to hear Dixon’s conversation with the woman, testimony about it would be hearsay as to them, and not admissible. Judge Rabb sustained the objection as to the children only; the jury was instructed to consider the ensuing testimony as to Gertrude only and to disregard it as to the children.

Such objections to testimony about conversations were to continue throughout the trial, and so were the confusing instructions to the jury. With five defendants on trial, there was almost certain to have been at least one of them missing during any given conversation.

Dixon testified about his talk with Gertrude, and then New introduced the first four gruesome pictures of Sylvia’s body as it lay on the upstairs mattress.

The courtroom was engulfed in another flood of objections. “Dixon was not present when the photographs were taken…. He had no right to be there…. The pictures are inflammatory and prejudicial….” But New elicited testimony that the pictures were “true and accurate representations” of what Dixon had seen, and that he had entered the house properly.

Rabb allowed the photographs to be passed to the jury at 3:36 p.m. The twelve men and women each took three or four seconds with each picture, viewing the girl’s savagely battered body with grim but
unflinching faces. The woman juror in the fourth seat hung her head after viewing the last of the four photos.

New asked Dixon about the note Mrs. Baniszewski had given to him. The objections began all over again. Judge Rabb told the jurors to disregard the note except for the cases against Gertrude and Paula, who were present when Dixon received the note. New read the note aloud, in which Sylvia supposedly explained her torture by a gang of boys. The note was then passed to the jury.

Little progress had been made the first day, with nearly every question meeting a torrent of objections, many of them sustained or partially sustained.

The jury was sent home to return at 10:30 a.m. the next day.

Before others went home, Johnny Baniszewski made a brief appearance on the witness stand. “What is your name and address?” asked his lawyer, Bowman.

“John Baniszewski, 3850 East New York Street,” the boy snapped back.

“That’s all,” Bowman said, and the boy returned to his seat, whispering to his lawyer, “How’d I do?” It was his only appearance on the stand during the trial, and the purpose was technical—to prove that it was his house the patrolman had entered illegally. The point did not score with Rabb, but Bowman had another point to raise on appeal, if necessary.

THURSDAY, APRIL
28, 1966, the second day of evidence. At the far left end of the defendants’ dock, alone at a single table, sat William Erbecker, attorney for Gertrude Baniszewski. To his right, at a longer, slightly higher table, sat the three attorneys for the four other defendants. That’s the way they wanted it. Erbecker was having nothing to do with the other lawyers, and they were having nothing to do with him. They were working at cross purposes.

Their trial on a common charge was all that was holding the five defendants together. Erbecker would paint Mrs. Baniszewski as a frail, distraught, insane woman who was unaware of tortures the children were inflicting on Sylvia or unable to stop them if she was aware (later, he changed his strategy to insanity alone). While Erbecker would be trying to push the blame onto the children, the children’s lawyers would be trying to push it onto Gertrude or onto the other children, whoever could take the rap. It was like having four extra prosecutors in the courtroom.

But even with separate tables, the other attorneys felt they had a hard time demonstrating their split with Erbecker. His voluminous written pleadings were matched by his verbose courtroom rhetoric; and the jury, the other attorneys feared, might get the impression he was “chief” defense counsel. This was one point in their pleas for separate trials.

After a brief hearing in which the judge denied Bowman’s motion to suppress Dixon’s testimony, and after a brief cross-examination of Dixon by Erbecker, the state called its next witness, Patrolman Harmon.

He faced the same battery of questions from defense attorneys about search warrants and constitutional rights, but New did manage to get him to identify a number of objects brought into the courtroom in a large cardboard box—an iron anchor bolt; pieces of bent curtain rod; some orange-painted wooden slats; a three-inch-wide black leather belt; a quarter-inch-thick fraternity-style paddle; a pair of soiled girl’s shorts.

Erbecker was 13 minutes late to the afternoon session. “I’m sorry, Your Honor,” he panted as he rushed into the courtroom where the others were waiting.

Sgt. Kaiser took the stand. After another battery of preliminary questions by defense lawyers, he was allowed to answer the deputy prosecutors’ questions for the benefit of the jury. He testified piecemeal, waiting for leading questions from New before going on. Defense attorneys objected that this served to unduly emphasize his testimony. Judge Rabb asked
him several times to relate the whole story of his investigation in one monologue.

At one point in the monologue, Erbecker objected that Kaiser had failed to advise Gertrude of her rights, saying she was “nervous and excited, under fear, and of unsound mind.” That brought a ripple of laughter from the gallery, whereupon Erbecker moved for declaration of a mistrial “because of the emotional outburst of the spectators.”

Rabb denied the motion, but that did not keep the lawyer from moving for mistrial a number of subsequent times during the trial. Erbecker continued his harangue that Kaiser had subjected Gertrude to “duress, fraud and coercion…unlawfully and illegally detained the defendant when he did not know her constitutional rights…she was held in the police department without food, sleep or rest and had no attorney.”

“Objection overruled,” said the judge calmly.

Kaiser continued to relate his conversation with Gertrude.

During a midafternoon recess, Erbecker again took up his cudgel against the police department. “He knew she had an attorney,” the lawyer said of Sgt. Kaiser. “She’s entitled to counsel. This is in the category of an inquisition.” He appealed to the
Escobedo
decision and the case of
Gideon
vs.
Wainwright.

“I have read both
Escobedo
and
Gideon
many a time,” the judge informed the lawyer. Pointing out
that he had already denied Erbecker’s motion to suppress, the judge continued, “Constant repetition does not make your point any stronger. The circumstances of the facts when a person calls the police and gives them a note are much, much different. I don’t think
Escobedo
says every policeman has to carry a lawyer around in his back pocket.” (Erbecker was to laugh up his sleeve a few weeks later when the United States Supreme Court ruled, in
Miranda
vs.
Arizona
and other cases, in effect, that if a policeman does not have a lawyer in his pocket, he had better know where to call one before questioning a suspect.)

Finished relating Gertrude’s denials of harming Sylvia, Kaiser proceeded to Richard Hobbs’ written statement. Attorneys for the other defendants spent the rest of the day arguing that parts relating to their clients should be deleted before the statement was read to the jury. But Hobbs’ attorney, James Nedeff, objected to taking any part of the statement out of context. The jury had been sent home for the day. Rabb took the objections under advisement and ruled the next day that the statement should be read in full. But he admonished the jury to consider it as to the case against Hobbs only.

Jenny Likens, who had stayed home sick the last two days, was back in the courtroom on Friday, April 29. She sat behind the prosecutor’s table, coughing deeply at intervals, shifting her large, sad eyes from witness to defendants and back again. She wore her dingy blond hair in a long ponytail,
and a faded orange cotton dress, white socks and red oxfords, one of which was permanently affixed to her brace.

Before Sgt. Kaiser was recalled to the witness stand, Rabb heard from psychiatrists who had examined Coy Hubbard and Johnny Baniszewski the day before. He ruled the two boys mentally competent to stand trial.

The jury was ushered into the courtroom, and Kaiser returned to the stand. Leroy New read Hobbs’ signed confession to the jury. Ricky hung his head and covered his ears. The other defendants sat impassive.

“Do you have an opinion as to whether Mrs. Baniszewski was sane or insane when you talked to her?” New asked the detective at the close of his testimony.

“Yes,” he said. Erbecker’s objection was overruled.

“What is that opinion?”

“She was sane.” New relinquished his witness to the defense for cross-examination.

Erbecker made little progress on the familiar theme of Gertrude’s “violated” rights. Meanwhile, Rabb ordered the standing spectators to leave the courtroom. “There is too much moving around, too much whispering,” he said.

Erbecker got Kaiser to list his vast experience as a policeman, then reminded him of the sadistic details of the crime. “Do you still say,” he asked incredulously, “she is a sane and normal person?”

The detective reaffirmed his opinion. Other attorneys asked him few questions, and Deputy Coroner Dr. Arthur Paul Kebel was next to take the stand after a 15-minute recess.

Kebel related his discovery that Sylvia’s body, when he first saw it, “was surprisingly clean compared to the other surroundings in the room.”

New asked him to relate evidence he found of physical injury.

“Well,” the doctor gasped, “I hardly know where to begin.”

Defense attorneys’ objections to that remark were sustained.

Kebel related what he saw in gory detail, holding the jurors 11 minutes past their usual lunch recess time.

“In your opinion,” asked Deputy Prosecutor New as he finished his questioning of the deputy coroner after lunch, “was Gertrude Baniszewski sane or insane?”

“I would say she was a sane person at that time.”

But Erbecker saw an opportunity and seized it on cross-examination. Showing the doctor a photograph of Sylvia’s mangled body on the slab at the city morgue, he asked: “Have you ever, in all your experience, seen such a sight as that?” Defense attorney Bowman objected and was sustained.

But Erbecker pursued the matter. In a lengthy hypothetical question, running hundreds of words, he detailed for Kebel the evidence that was in so
far—of the fantastic injuries the girl had suffered. “Is it still the belief on your part,” he asked, “that Gertrude Baniszewski was of sound mind?”

Kebel explained that when he saw the body, he had no reason to connect Gertrude with the crime. But as for the body’s mutilation itself, he said, “I thought it was the work of a madman.”

Knowing the doctor’s penchant for glowing in the limelight of the witness stand, Erbecker pressed him further, asking him whether he believed the murderer suffered from sadism. Resisting efforts by the judge and other attorneys to make him answer yes or no, Kebel said, “I think your question should be answered by a psychiatrist.” But he indicated a desire to express an opinion of some sort, and a rephrased question by Erbecker brought this reply: “I would say that only a person completely out of contact with reality would inflict this kind of agony on a human being.”

Bowman, offended by Erbecker’s style of questioning, asked that the jury be instructed to disregard it as to his own clients, Johnny Baniszewski and Coy Hubbard. “It puts them in the position of being prosecuted by Mr. Erbecker,” Bowman complained, “or represented by him, and either way it would deny them their choice of counsel.” The objection was overruled.

The pathologist, Dr. Charles R. Ellis, took the witness stand. New offered into evidence the ghastly photographs taken of the body at the autopsy, showing the girl’s completely naked body
with all its wounds. The blown-up pictures, visible to almost everyone in the courtroom, were first passed down the line of defense lawyers for possible objections. As they passed near Jenny Likens, she covered her eyes. As the lawyers argued over introduction of the photos, she began to cough and cry. She was led from the courtroom by investigator Norman Collins.

Before allowing the pictures to be shown to the jury, Judge Rabb admonished the jurors not to be inflamed by them. “They are not in evidence for that purpose,” he said.

Later, as Dr. Ellis described the injuries he found, Jenny re-entered the courtroom, having composed herself. She sat through the rest of the day’s session with a determined look on her face.

Propped on an easel before the jury were two large outlines of the human body, one for the front and one for the back of the body. As Ellis testified, he used three colored pencils to sketch in different types of wounds, marking them in where he had found them on Sylvia’s body. By the time he finished, the diagrams were motley combinations of red, green and purple.

After a day of sordid testimony, the jury was due for a rest. Court was recessed until 9:30 a.m. on Monday, May 2.

CROSS-EXAMINATION OF
Dr. Ellis by defense attorney Erbecker the following Monday served only to add a few more details to the picture of Sylvia’s agonizing death, to add a few more colorations to the diagrams on the easel. So the lawyer made another desperate attempt to convince the jury that Gertrude Baniszewski was insane.

“Do you agree with Dr. Kebel that it was the work of a madman completely out of touch with reality?” he asked. Objection, sustained.

So Erbecker established that the doctor had taken courses in abnormal psychology, in order to qualify him for an opinion on sanity, and launched into a longer hypothetical question than he had posed to Dr. Kebel. “Assuming all those facts in evidence,” he concluded after several minutes, “could you state an opinion as to her sanity?” Objections by the state and by other defense attorneys were sustained. Dr. Ellis had never talked to Gertrude Baniszewski.