House of Evil: The Indiana Torture Slaying (St. Martin's True Crime Library) (17 page)

Judge Rabb cited an Indiana statute permitting introduction of such evidence. “What do you think of
9-1607 Burns
, Mr. Bowman?” the judge asked Johnny’s lawyer.

“I think it’s probably fatally at variance with the Constitutions of the United States and of the State of Indiana,” the young lawyer said.

“It’s been up to the Supreme Court about 100 times, hasn’t it?” the judge asked.

“Not since
Escobedo,”
the lawyer answered. But Rabb overruled the objection.

Meanwhile, Erbecker was filing a written motion for mistrial, or, in the alternative, for a poll of the jury to determine prejudice. Supplemented with what the lawyer believed to be prejudicial newspaper accounts of the trial, the motion also cited the noise of spectators’ “hissing,” “jeering,” and “buffoonery.” The gallery, Erbecker said, was “a Roman arena here where they can wait for the kill.”

Rabb, who had ordered standing spectators out of the courtroom several times for whispering, said he had not heard the noises cited by Erbecker. “The Constitution requires a public trial,” he added.

Deputy Prosecutor New noticed that one of the articles tabbed as prejudicial was headlined, “8 Men
and 4 Women Put on Jury in Likens Case.” The deputy prosecutor was losing his patience with Erbecker. To label such an article prejudicial, New said, “seems like buffoonery itself.”

Rabb reminded Erbecker that the jury was being instructed each time it left the courtroom not to read newspaper accounts of the trial and not to listen to broadcasts about the trial.

The legal arguments took the rest of the morning. When participants returned from lunch, there were a few empty seats in the courtroom gallery for the first time since testimony began. They were filled soon, and the trial had a standing-room-only audience the rest of the way. The spectators ranged from high school pupils to elderly women; many of the latter arrived an hour early each morning carrying sack lunches. One morning a woman was injured scrambling with another woman for a seat and needed hospital treatment.

As the afternoon session began, New read the statements of Paula and Johnny to the jury. On cross-examination by Bowman, Sgt. Gentry was caught in a slight slipup. He admitted that he did not offer to call Johnny’s father before questioning the 12-year-old boy. He said he “had no idea where his father lived at all.” So Bowman introduced an official police paper Gentry had had at the time of questioning that listed the father’s name, age and address.

Mrs. Vermillion, the uncurious neighbor, was the next witness. She told about her two trips to the
Baniszewski house and about the scraping sound. On cross-examination she admitted that she had not called authorities with her information until April 25, 1966, six months after the murder and a week after the start of the trial. She said she called because she had seen a picture of Coy Hubbard in a newspaper identifying him as Paula’s boyfriend. She said she knew that Paula’s boyfriend was someone other than Hubbard, and she wanted to advise the prosecutor of the mistake.

Mrs. Vermillion told Erbecker she was not a prejudiced witness against Gertrude Baniszewski. “I felt sorry for the lady,” Mrs. Vermillion said. “I felt she was a hard-working lady…all those kids to take care of.”

Late in the afternoon, at the end of a harrowing week, deputy prosecutors felt they had time for one more witness. Ten-year-old Shirley Baniszewski was led into the courtroom by her foster mother and her lawyer, John Hammond. Wearing a school dress and carrying a small leather purse, the pretty little brunette took the stand smiling, promising to tell the truth.

She was asked to point out her mother in the courtroom, for legal identification. The sweet smile rapidly drooped into a frown, and the little girl was in tears as she pointed to Gertrude Baniszewski. Gertrude herself jerked her head to one side and covered her eyes, crying. Paula also cried as she was pointed out by her little sister.

Erbecker requested permission to ask some preliminary
questions in the absence of the jury. Rabb sent the jury home until 9:30 a.m. the next Monday.

“Now, young lady,” the lawyer began. He asked her a number of questions to determine whether she knew what it meant to tell the truth. Shirley said, “I know I should tell the truth,” and she began crying again. Leroy New jumped to the floor and said he would object “if the questions are designed for interference with justice.”

Shirley said she had failed the first grade, and Erbecker sought further to question her intelligence and competence. “Do you know how to spell Baniszewski?” he asked. She rattled it off, letter perfect.

“Do you know how to pronounce it?” the judge asked the girl.

“Ban-i-SHEF-ski,” the girl said carefully. Erbecker had been mispronouncing it “Ban-i-ZOO-ski” throughout the trial.

Rested over the weekend, Shirley wore a large white bow in her hair Monday morning when she returned to the witness stand, and she was bright and perky. She told of Coy Hubbard’s ramming Sylvia against the wall and smacking her. “And you were there?” asked Deputy Prosecutor Marjorie Wessner.

“Yeh,” Shirley said, bouncing and smiling. The import of her words apparently was not within her grasp.

Shirley told of numerous atrocities she had witnessed and, in some cases, helped perform. “Was Sylvia a good girl?” asked Miss Wessner.

“She was helpful,” Shirley said in a sweet voice that sounded sincere. “She’d help everybody in the house.”

Why, she was asked on cross-examination, had she not said anything to anyone about the beatings? Didn’t she ever talk to other children in the neighborhood?

“I played with them,” Shirley said, “but I didn’t tell them what was going on because I just thought they were punishing her.”

Judy Duke, who had testified at the habeas corpus hearing, was the next witness. She testified, among other things, that Coy Hubbard had rubbed salt into Sylvia’s sores, along with Paula. On cross-examination Bowman, Hubbard’s lawyer, introduced Judy’s signed police statement, which carried no mention of Hubbard’s applying salt. No one else had testified to seeing Hubbard apply salt, either.

As in the habeas corpus hearing earlier, this slowly responding witness forced attorneys to be precise in their questions. George Rice, Paula’s attorney, asked Judy about the “package of salt.”

“It wasn’t a package,” the girl said.

“Box, then,” said Rice.

“Yeh,” Judy said, “a box.” And then she answered Rice’s question.

The state’s most fantastic witness, 12-year-old Randy Lepper, followed Judy in the afternoon. His witness-stand mannerisms shocked and amused lawyers and spectators. Erbecker had introduced a motion that the boy undergo psychiatric examination
to test his competence as a witness. Erbecker filed the same motion for a number of juvenile witnesses, and Rabb ruled that such examination was neither proper nor necessary.

Randy wore a tie and a bright red blazer; a shock of hair from his modified Beatle haircut hung nearly to his eyes. The impish smile from his cherubic face found its way across the courtroom if perhaps his soft, hoarse voice did not. He smiled, squirmed and fidgeted, occasionally rolling or flicking his eyes toward the ceiling as attorneys asked him questions.

What did Sylvia say when Randy and the others hit her? “She said ouch,” he grinned, flicking his eyes upward. Gertrude drooped her head in her hand as he testified.

Randy told of Johnny’s hosing off Sylvia on the basement floor shortly before Sylvia died. “Whose hose was he using?” asked Miss Wessner.

There was a long pause. Randy raised his eyes to the ceiling, then brought them down again. “Mine,” he smiled.

To Erbecker’s pleasure, Randy described Gertrude as “nervous.” How could he tell? “Because my mom’s got eleven children, and I can tell.”

Had Randy ever seen Sylvia doing anything “unusual” in the Baniszewski house?

“I seen her studying a few times,” he said.

Barbara Sanders, the public health nurse, was next to the stand, to tell about her October visit to the Baniszewski home. Not unexpectedly she was
blamed by defense attorneys for having allowed the murder to occur.

Erbecker asked incredulously about Mrs. Baniszewski’s story to the nurse that 16-year-old Sylvia had been kicked out of the house and her present whereabouts were unknown. “Did you check her story out?”

“No, sir,” the nurse replied; “I had nowhere to go from there….

“Well,” she admitted after another question, “it
was
a little out of the ordinary.”

“What did you do about it?” asked Erbecker.

“I wrote it up,” she said.

Explaining further, Mrs. Sanders said, “It was an anonymous complaint, which I receive many of…. I hear many more tales than you’d ever dream of…. It wasn’t any more incredible than stories I hear every day, sir.” She said she did not feel the case warranted any further investigation at that time; so she wrote her report on a “one time only” card.

The Baniszewskis’ fundamentalist minister, the Rev. Roy Julian, was the state’s next witness, telling of his visits to the home and the things he had overheard at church. He was followed by Grace Sargent, the woman to whom Paula had bragged on the church bus about breaking her wrist on Sylvia’s jaw. When Paula said she had tried to kill Sylvia, did Mrs. Sargent believe it? “I really don’t know what I did believe,” the woman replied. “That’s the burden of guilt I have.”

It was 4:55 p.m. and time to adjourn. Leroy New announced that the state would rest its case the next morning, on the sixteenth day of trial.

The only state’s witness that morning was Police Sgt. Don R. Campbell, already a witness earlier but recalled to testify on the sanity of Coy Hubbard, for whom a suggestion of insanity had been filed. “I’d say he was sane,” the policeman said.

“Do you know how to interpret a thematic apperception test?” asked Hubbard’s lawyer, Forrest Bowman. Campbell was no psychiatrist, but his testimony was the only evidence one way or the other on Hubbard’s mental condition. Bowman later withdrew the suggestions of insanity for both Hubbard and Johnny Baniszewski.

It now was the defense’s day in court, and the defendants were dressed for it. For the first time in the trial, Johnny wore a coat and tie. Gertrude wore a new, sleeveless, dark blue sweater.

The usual motions for directed verdict of acquittal and other similar motions by defense attorneys were quickly denied by Judge Rabb. Meanwhile, Erbecker was hurriedly serving subpoenas on newsmen and bailiffs for testimony on the mental and physical condition of Mrs. Baniszewski, whose case would be presented first.

The first defense witness thus turned out to be the author of this book, John Dean, a reporter for the
Indianapolis Star
, at that time covering the Likens trial.

Erbecker drew out my professional background, established how long I had been working on the case, and then asked whether I had an opinion on Gertrude’s sanity. I said I did. Erbecker asked me to state that opinion; but the deputy prosecutor, New, objected, and Judge Rabb sustained the objection on grounds that I was not competent to testify on Mrs. Baniszewski’s sanity. (It was not because I was not a psychiatrist or a psychologist; it was because I had never spoken with Mrs. Baniszewski.)

Had I been permitted to testify, I would have expressed the opinion that Gertrude Baniszewski was sane. However, Erbecker probably expected New to object. His motive was to create the impression with the jury that he had a newspaper reporter as a defense witness ready to testify that the woman was insane.

I had never told either Erbecker or New whether I thought Gertrude was sane or insane. New told me later that he suspected I believed her to be sane. But he said he objected to my testimony because he did not want a precedent established for calling newsmen as sanity witnesses. Although Erbecker had most other newsmen at the trial under subpoena, I was the only one he called.

His next witness was attorney John Hammond, by whom he hoped to show how he became Mrs. Baniszewski’s attorney. Judge Rabb ruled that that would be irrelevant. On further objection by lawyers for the child defendants that Hammond’s testimony would violate their attorney-client privileges, Rabb stopped Hammond’s testimony altogether.

His first two ploys meeting with a minimum of success, Erbecker then put his client, Gertrude Baniszewski, on the witness stand. It was 10:55 a.m. on Tuesday, May 10, 1966.

GERTRUDE BANISZEWSKI
appeared wan and sleepy as she began in a soft, weak voice to tell of the hardships of her 37 years. Her tale of woe was credible enough until she began to relate her knowledge of the murder of Sylvia Likens, and then it soon became obvious that she either was lying or had a notoriously poor memory. Later, an hour and 11 minutes of relentless cross-examination by Leroy New brought out numerous discrepancies in her testimony.

Gertrude testified that she at first refused to take in Sylvia and Jenny but bowed to their imploring father. She went on to say that she was sick in bed much of the time Sylvia lived with her, and that she never harmed Sylvia.

Gertrude choked back tears as she told of prior hardships. “It was a real run-down home,” she said of the house at 3850 East New York Street, “but it was all I could afford at the time.”

“I believe I tried paddling her once,” she said of
Sylvia. But did she ever “strike, beat or kick” her in October? “No, sir, I did not!”

Her direct testimony continued at 1:34 p.m., after the noon recess. A bit chilly in the air-conditioned courtroom, she had slipped a brown cardigan over her sleeveless blue sweater.

Gertrude said she did not recall any events the last few days of Sylvia’s life except a couple of trips to the doctor. “I remember handing them a note,” she added, about the note she gave to policemen. “I don’t know which one of the children gave it to me.” Other than fights, she had seen no mistreatment of Sylvia by the children, either. “Sometimes I would try to break it up,” she said of the fighting; but generally, she said, she was too weak or sick to break it up.