House of Evil: The Indiana Torture Slaying (St. Martin's True Crime Library) (12 page)

There are two considerations of criminal sanity in the law. The first is a matter of “competence,” or present comprehension. If a defendant is judged by the court not to comprehend the nature of the charge or mentally unable to assist his or her attorney, he or she can be declared incompetent and committed to a state mental hospital until judged competent again. Such a
commitment could delay a trial indefinitely, even until all witnesses have died. Once the defendant is judged competent again, he or she must stand trial.

The second consideration is sanity at the time of the crime—that is, if the defendant did not understand the nature of his or her actions at the time of the crime, did not know right from wrong, or did not have sufficient will power to control his or her actions, he or she is not legally responsible, and must be acquitted.

In both sanity considerations, the judge must appoint physicians to examine the defendant; the physicians then may give testimony in court. It is up to the judge to decide whether a defendant is competent to stand trial; it is up to the jury during the trial whether a defendant was sane or legally responsible for his actions.

The suggestion of insanity or noncomprehension is one of a defense attorney’s means of forcing the issue and getting the court to appoint examining physicians, usually psychiatrists.

Erbecker followed Rice two days later with a “suggestion of insanity” for Mrs. Baniszewski.

Judge Rabb ordered Mrs. Baniszewski to be taken to Marion County General Hospital January 13 for her mental examinations. The same day, he ordered Paula to the hospital for the same reason, and for an additional reason—to await childbirth.

Rabb had guessed Paula’s condition the first time he saw her in court, and he was the first official to whom she admitted that she was pregnant. She gave
birth to a girl the same day she went to the hospital, January 13. The baby was placed in a foster home by the Department of Public Welfare pending the outcome of the trial. Paula named her daughter Gertrude.

By the time the case came to trial, all the defendants had filed “suggestions of insanity,” and psychiatrists had reported all to be mentally sound. On January 28, court-appointed doctors Dwight W. Schuster and Ronald H. Hull reported to Judge Rabb, in a letter, that Mrs. Baniszewski was mentally sound and able to stand trial. They added that she “appeared to be of average intelligence” and was, in their opinion, sane at the time of the crime.

Judge Rabb set Mrs. Baniszewski’s long-delayed arraignment for 9:30 a.m. the following Thursday, February 3.

Meanwhile, Paula, recovered from childbirth, was arraigned and pleaded not guilty. She then was sent back to the hospital for the mental tests that had been postponed by the childbirth.

Coy Hubbard and Johnny Baniszewski had pleaded not guilty six days before, and Rabb had denied the motion to quash Johnny’s indictment at that time. Jenny Likens attended the court session and cried when the court clerk read the indictment, setting out the charges against the six defendants.

On February 9, Dr. Hull and Dr. Dewitt W. Brown reported to Rabb, by letter, that they believed Richard Hobbs “is not psychotic, that he is of at least normal intelligence and that he is quite capable of
cooperating in the preparation and execution of his defense.”

The same two psychiatrists reported on Paula’s condition a short time later. She was alert and perceptive, they said, and her “thought processes were well organized…. She showed characteristics of an immature, hysterical type personality, from an emotionally deprived background.” But she was mentally competent, they said.

The doctors reported further that Paula denied injuring Sylvia, and “she represented the situation generally as one in which the girl Sylvia had become quite withdrawn and negativistic in her behavior to the extent that she would not eat and showed no response to pain.” The doctors said Paula told them she did not believe Sylvia’s condition was serious prior to her death.

Going further into Paula’s emotional background, the doctors said Paula told them her parents, John and Gertrude Baniszewski, had a very poor relationship and she believed it was due to her father’s mistreatment of her mother, a mistreatment repeated by Dennis Wright.

At a formal hearing March 16, in which the psychiatrists testified, Judge Rabb ruled that Mrs. Baniszewski, Paula Baniszewski and Richard Hobbs were mentally competent to stand trial. Coy Hubbard and Johnny Baniszewski would be examined later. At one of the hearings Stephanie, who had been drawing sketches of Judge Rabb and Jesus Christ during the proceedings, handed her attorney a note on which
she had written, “I need a psychiatrist.” But the matter never got much further than that with her.

Discouraged by the sanity reports and the outcome of other preliminary legal skirmishing, defense attorneys began to concentrate on the prosecution’s insistence on trying all six defendants together. That seemed to defense attorneys the most vulnerable point of attack, from a legal standpoint.

The defense knew that if the state won all the preliminary legal battles, the defendants were in trouble. Going into trial, they would be faced by Leroy K. New, chief trial deputy in the Marion County Prosecutor’s Office.

Suave and commanding in appearance, devastating in debate, ruthlessly effective on cross-examination, New had been chief trial deputy for several Republican prosecutors; he had sent several high state officials to prison for highway land-buying fraud; he had gained convictions of local vice kings who kept teenage prostitutes in slavery; and he had never lost a murder case. The closest he had come to losing a murder case was in the acquittal—by reason of temporary insanity—of a jail prisoner in the fatal beating of another inmate. But even then the prisoner’s insanity was held likely to recur; and he was committed to a mental institution indefinitely, and for at least two years.

Tall, athletic, and handsome, about 40 years old, New possessed pointed facial features suggesting the blade of a hatchet; and his courtroom technique was just as cutting. A former professional saxophonist,
he could play a jury as Paderewski played the piano.

So, partly in an effort to cut down on New’s effectiveness and enthusiasm, defense attorneys began filing motions for separate trials for each defendant. Rice was first, with a motion for separate trial for Paula, on January 21. John Hammond soon followed, for Stephanie.

Their argument was that placing one defendant at the same table with the others, in the same trial, would hopelessly prejudice the jury against any one defendant. For instance, testimony against Gertrude Baniszewski might not be admissible against Johnny Baniszewski, and the jury would be instructed to disregard it when considering Johnny’s guilt or innocence. But the jury would have heard the testimony, attorneys argued, and would have trouble putting it out of mind. Moreover, they argued generally, the mere charging of the children along with the evil Mrs. Baniszewski would cause the jury to associate them with her in their thinking, with prejudicial results.

Rabb took little time in denying the motion for separate trial for Stephanie, explaining that the law of Indiana prescribed joint trial when the defendants are charged with acting “in concert.” Rarely, however, had so many been tried together on a murder charge; and the joint trial of five children on a murder charge was unprecedented.

Forrest Bowman, attorney for Johnny and Coy, pressed the issue. He filed a motion for separate trial
for Johnny on February 7. Oral arguments on the motion were conducted before Rabb on March 30.

“It is bad enough,” Bowman argued, “to require him to sit in court while his mother is being tried.” But in addition, he said, the boy would be on trial himself, and he might find it necessary to testify in his own defense. Now some of this testimony, Bowman argued, might be harmful to his mother, so he might be reluctant to testify in his own defense.

“The state is saying to the boy, in effect,” Bowman said, “send your mother to the electric chair or go yourself.”

The county prosecutor’s chief counsel, Frank E. Spencer, leaped to the floor in rebuttal. The law does not require separate trials, he noted; it was discretionary with the judge. And the circumstances of this case, he argued, required a joint trial.

“I wish to point out that this is a murder case,” Spencer said. “The defendant and others are charged with murder. The law leaves it entirely within the discretion of the court as to whether there should be a separate trial. When several are charged with acting together in a murder, it is always best to present the whole thing at one time. The law contemplates it; the law allows it.”

Leroy New explained the idea of joint trial later, outside the courtroom. When defendants are charged with committing a crime “in concert,” he said, “the jury or judge couldn’t get the total picture if only one person’s part is told. Evidence against the others would be inadmissible.”

This meant that with all being tried together, the jury could hear what all the defendants did, if anything, and judge the full impact of what each did. What one person did still would not be admissible against another person, but the jury could at least see the full meaning of the one person’s act.

It would probably be hard to prove that what any one defendant did to Sylvia Likens was enough to kill her. But taking all their actions together, a murder case might be made. And defense attorneys then would have a harder time shifting the blame to other defendants, as physicians would testify that they could not be certain exactly which injury caused death.

Judge Rabb agreed with the deputy prosecutor; he denied Bowman’s motion. Bowman sought to have that and other preliminary rulings overruled in the Indiana Supreme Court, but he was unsuccessful.

When it became apparent that Rabb would not lean over backward to help them, the defense attorneys began seeking to take the case outside his jurisdiction. Had they acted early enough on this strategy, they would have been successful, for Indiana law required a court to grant a change of venue from the county if the motion was filed within a specified time limit.

After the limit, though, granting the motion becomes discretionary. There will always be the question, however, of whether the lawyers actually wanted the change, or whether they merely wanted the judge to give them an adverse ruling so that they would have another point to raise on appeal later.

The first motion for change of venue was on March 1, for Johnny Baniszewski, by Ferdinand Samper, who was substituting for his vacationing junior law partner, Forrest Bowman. The motion said the defendants would not be able to get a fair jury in Marion County because of extensive newspaper, radio and television publicity on the case. Judge Rabb denied the motion for technical faults.

But he had had a conference with lawyers in the case in his chambers at the time the motion was filed, and that conference led to the first motion for change of judge. Stephanie’s attorney, John Hammond, filed that motion, alleging that during the discussion in chambers, “much heated animosity appeared prevalent between Ferdinand Samper and the Honorable Saul I. Rabb,” supposedly indicating Rabb was prejudiced. Hammond noted that Samper was Rabb’s opponent in the coming primary election for the nomination of judge of Criminal Court, Division 2.

But he did not mention that Samper was merely substituting for Bowman and that he was not an attorney of record in the case. In another motion filed the next day, Deputy Prosecutor New pointed that out; and he added that he, too, had attended the discussion and had observed “no hostility between such persons” and that there had been no remarks “which were angry or unreasonable.”

The following day, Rabb denied the motion for a change of judge, as he was to deny similar motions from then on. On March 29, he denied an amended motion by Bowman for change of venue.

But Rabb did agree to provide state funds for a psychiatrist to examine Johnny Baniszewski.

The last day of February, Judge Rabb announced that the Likens murder trial would begin on Monday, March 7. Bowman’s motion for change of venue caused a postponement from that date, however. It appeared there might have to be a further postponement when a tuberculosis patch test on Johnny Baniszewski proved positive. A chest X-ray determined that he did not have TB, however.

Meanwhile, the usual voluminous motions being filed by William C. Erbecker, attorney for Mrs. Baniszewski, were causing delays of their own.

Judge Rabb denied Erbecker’s motion to quash the indictment on February 3. So Erbecker moved for a continuance of Gertrude’s arraignment for time to prepare a “plea in abatement,” and the continuance was granted.

The arraignment was postponed again on February 9 as Erbecker filed his plea in abatement; a motion to force the state to produce statements, documents, writings, recordings and other material used in its investigation; a motion for inspection of the grand jury transcript, and a motion for examination of County Prosecutor Noble R. Pearcy to determine whether improper questions were put to Mrs. Baniszewski. “The defendant is at a loss to understand what she is charged with,” the motion said.

The plea in abatement contended, among other things, that Mrs. Baniszewski had no lawyer during
her grand jury testimony, that she had no stenographer to record the proceedings for her, that the grand jury was not qualified because of its attempt to resign earlier, and that the grand jurors were biased by news of the Likens murder.

The next day, the prosecution filed a “demurrer” to Erbecker’s plea in abatement; and on February 11, Judge Rabb sustained the demurrer, nullifying Erbecker’s plea.

Rabb ordered Mrs. Baniszewski to be arraigned the following Friday, February 18, at 3 p.m. She finally was arraigned at that time, pleading not guilty and not guilty by reason of insanity. Rabb indicated a desire to set the case for trial, but Erbecker said he had some more motions to file the first of the next week, including a motion for separate trial and a motion to suppress evidence.

Rabb eventually denied those motions, and on March 7 he set the case for trial beginning April 18.